Pine Valley Golf Club was established over 108 years ago, and from the time of its founding it not only kept women from being members, it even barred almost all women from playing golf or even entering its facilities. It justified this practice, as well as its discriminatory hiring practices, by pointing to its status as a private club, unregulated by federal or state laws. But in the filing accusing the club of violating the New Jersey Law Against Discrimination, the state indicates that the club was so deeply enmeshed with the former borough of Pine Valley that private club exemptions did not apply. This refers to the club’s recent merger with the borough in 2022. Previously the borough had been a legally incorporated state municipality whose land was owned by the golf club. 

The state’s list of alleged violations of the New Jersey Law Against Discrimination is long, and includes discriminatory restrictive covenants that prevent women from owning houses on the club’s land unless they co-own the property with a man; restricting membership to men; restricting women from playing golf or otherwise accessing club facilities;  and employment practices that recruited primarily from word-of-mouth referrals from the club’s workforce, resulting in the club being staffed almost exclusively by men. Of 159 employees, only six are women. The lawsuit also points to the Club’s employee handbook, which includes rules that forbid only men from wearing earrings and forbidding employees from discussing their pay; both are violations of state law.

Speaking of the charges against the historic club, Acting Attorney General Platkin said, “Gender-based discrimination has no place in New Jersey, period.” For its part, during the course of the state investigation the club defended its actions by indicating that all sex and gender restrictions on membership and use of facilities had been lifted in spring of 2021, shortly after the Division on Civil Rights began their investigation.

It is unclear how many individuals were victimized by the club’s discriminatory practices, but the complaint is seeking compensation for economic loss, humiliation, and mental pain and suffering, as well as penalties and investigative and litigation costs. The filing is an indication of how seriously the state takes violations of New Jersey’s Law Against Discrimination.

If you have been impacted by discriminatory hiring practices, our experienced attorneys are here to help. Contact us today to set up a convenient time for us to meet and discuss your situation.

The post NJ’s Acting Attorney General Files Discrimination Lawsuit Against Pine Valley Golf Club appeared first on Schorr Law | The Employment Lawyers | South Jersey Employment Attorneys.

The woman’s claim was filed after she was terminated in October of 2018, but her situation had started months earlier, after she had given birth to her daughter. She had initially taken maternity leave from her job with VCNY Home under the federal Family and Medical Leave Act (FMLA). She then asked to take an additional 12 weeks to care and bond with her infant under the New Jersey Family Leave Act (NJFLA), but in response VCNY told her that the time she had taken under FMLA ran concurrently with the time allowed under NJFLA and that if she did not return to work it would be viewed as a resignation.

The company’s position was not correct. New Jersey law explicitly states that when an employee gives birth and first uses federal FMLA leave time to recover from childbirth, it does not exhaust the additional time available for bonding under New Jersey’s Family Leave Act. The state leave becomes available after the end of the federal leave. Still, under threat of termination if she did not return to work, the employee opted out of taking the time to which she was entitled.

Upon her return, the employee found herself the target of harassment and retaliatory behavior. She was excluded from projects and meetings, subjected to demeaning and inappropriate jokes and a workplace security camera pointed directly at her workstation, and stripped of some of her job responsibilities. Finally, she was ordered to take a two-week business trip abroad despite explaining that she was exclusively breastfeeding her infant and providing a physician’s note supporting her request for an accommodation. Rather than accommodate her request, the company fired her and told that it was because she was unable or unwilling to perform an essential job function.

Following her termination, the woman filed a complaint citing NJFLA interference, illegal denial of reasonable accommodation relating to breastfeeding, and retaliation, as well as a violation of the New Jersey Law Against Discrimination. In resolving the case and announcing the terms of the settlement that VCNY had to pay, the Division of Civil Rights Deputy Director Rosemary DiSavino explained that, “New Jersey law provides strong protections to persons who are pregnant or who are new parents. Those protections include accommodations for bonding, breastfeeding, job-protected leave, and a prohibition against retaliation for parents who exercise those rights.”

In addition to having to pay the $195,000 settlement, VCNY is also required to review and (where necessary) revise its pregnancy leave and accommodation policies; to provide anti-discrimination training to all human resources employees who handle and process pregnancy and accommodation requests as well as to all VCNY supervisors, managers , and owners; and to report to DCR each year for the next three years regarding any pregnancy-related leave requests it receives, as well as any pregnancy-related or breastfeeding-related accommodation requests and any internal or public agency complaints filed against it by employees regarding pregnancy discrimination or failure to provide a reasonable accommodation.

Regarding the resolution of the case, Acting Attorney General Matthew J. Platkin said, “In New Jersey, we are committed to protecting the right of workers to have both a job and a family. No one should be forced to choose between having children and earning a living. Today’s settlement should serve as a reminder to employers to take their workers’ rights seriously, and that we will continue to take action to ensure those rights are protected.”

If you believe that your rights as a New Jersey employee have been violated, we are here to help. Contact our employment discrimination law firm today to discuss your case and learn about your options.

The post Breastfeeding Mother Wins $195,000 Settlement from New Jersey-Based Manufacturer appeared first on Schorr Law | The Employment Lawyers | South Jersey Employment Attorneys.

Stephen Sullivan filed his case in New Jersey state court last week after having been terminated just two weeks earlier. The former senior technology manager claims that over the past two years the financial institution has systematically set older employees up for failure and then fired them in favor of younger, less experienced workers.

In his own case, Mr. Sullivan alleged that he was transferred from a position in the bank’s Risk & Finance Technology division — where he had consistently earned successful performance reviews — to an undefined position on a project team that had previously been derided for its “poor design, development and implementation.” He alleges that within months he was being blamed for its problems, and that it eventually led to his firing. His lawsuit cites six other senior technologists around his age who suffered similar firings. He also alleges that as part of his management instructions he had been told to cut the number of senior software engineers on his staff and to replace them with younger engineers and interns. This resulted in multiple senior software engineers in their late 40s to mid-50s being “constructively terminated.”

The specifics of Mr. Sullivan’s own firing revolved around his placement on a project team called Profit Link. Despite having “no formal responsibilities, no direct reports and no leadership authority,” he alleges that he’d been tasked with regaining control of Profit Link from the Deloitte consultants who made up the majority of the team. Profit Link had been designed, built, and serviced by a Deloitte consultant who was later hired by the bank and who in turn hired and promoted additional Deloitte consultants. As for Profit Link itself, he alleges that the project was viewed as a representing a three-year history of bad decisions that had cost M & T $40 million. Mr. Sullivan claims that despite he and the bank not having been involved in the project from its start and the Deloitte consultants failing to follow M & T’s protocols or best practices, he was blamed for its problems.

In describing his experience, Sullivan explained that he had been assigned to Profit Link in 2021 after another employee’s departure. The transfer had represented a raise, but in just two months’ time he received “unexpected and ambiguous negative feedback” from a supervisor, and a month later his annual performance review indicated that he needed improvement and was not eligible for a bonus. He alleges that the same supervisor was the individual who blamed him for the three years of expense and problems with the project, and who fired him, replacing him with a younger and less experienced manager.

Mr. Sullivan alleges that similarly situated employees have suffered the same fate in the M & T Bank environment, and he accuses the bank of intentional infliction of emotional distress, as well as breach of the covenant of good faith and fair dealing. He is seeking compensation for the damages he suffered, while also asserting that many others have been and continue to be treated unfairly based on their age.

If you have experienced adverse actions in the workplace as a result of your age or because you are a member of any protected class, your rights under the New Jersey Law Against Discrimination may have been violated. Contact our employment discrimination law firm today to learn how we can help.

The post New Jersey Man Files Age Discrimination Lawsuit Against M&T Bank appeared first on Schorr Law | The Employment Lawyers | South Jersey Employment Attorneys.

The case had been filed by an advocacy group called Libertarians for Transparent Government, which had originally filed an Open Public Records Act (OPRA) request for a settlement agreement between Cumberland County, New Jersey and Tyrone Ellis, a county correctional officer.

In 2017, Ellis and several colleagues were named in a lawsuit alleging that they’d forced a woman to engage in non-consensual sex acts. The Libertarians for Transparent Government had first obtained the minutes of a meeting of the Board of the Police and Firemen’s Retirement System where Ellis’ application for special retirement had been discussed.  Those minutes made clear that the County had intended to fire Ellis, and that despite his resignation prosecution of the disciplinary matter would continue. In return for a promise of cooperation into the conduct of his colleagues, however, the minutes recorded an agreement that the charges would be dropped and that Ellis would retire “in good standing,” albeit with a reduced pension.

When the advocacy group’s OPRA request for the settlement agreement was received it specified that the officer’s “name, title, position, salary, length of service, date of separation and the reason therefore’ be included, as specified under New Jersey’s laws. Instead, the County responded by saying that because the agreement was a personnel record, it was exempt from disclosure. The group subsequently sued in Superior Court, where it was ordered that a redacted version of the settlement agreement be provided. This decision was reversed by the Appellate Division, leading to the appeal to the New Jersey Supreme Court.

In its review, the high court acknowledged the confidentiality under OPRA of personnel records, but also noted that certain aspects of personnel records qualify as a government record that fall under the terms of OPRA, and that the statute “calls for a careful balancing of the right of access to government records versus the need to protect personal information.” The court went on to list the three specific areas of personnel records that are exceptions to exemption from disclosure, one of which is the employee’s name, title, date of separation, and reason for separation, as well as any type of pension that they receive. The court interpreted that to mean that records of this type of settlement agreement should be available to the public once redacted.

Transparency is a key tenet of our justice system, and particularly when it comes to issues involving employment. If you have questions about your rights regarding employment discrimination or harassment, contact us today to learn how we can help.

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Clearly employers (who he and his firm represent) always want their settlements to be confidential. Why expose the unlawful acts of their company to the world at large? Why expose an executive of the company who routinely subjects his female employees to unwarranted comments and advances? The fact is that the purpose for making these settlements public is to prevent future bad conduct. Imagine if all the settlements paid out to the victims of Roger Ailes, Bill O’Reilly and Matt Lauer were made public from the first settlement. Those individuals would have been fired long ago. Individuals such as Gretchen Carlson would never have had to suffer from the pain and humiliation that they [she] did, let alone the damage to her career. A defense lawyer who opposed the bill, the current President of the New Jersey State Bar Association, admitted during a panel discussion at the bar convention last May that he was wrong; he agreed that the bill that prohibits discriminators and harassers from silencing their victims has not had a negative impact settlements.

It is even more disturbing that the author incorrectly cited a dead bill and misrepresented both the substance and intent of the bill. Assembly Bill No. 4637 died at the end of the 2020-2021 session, without even having been heard in Committee. The Senate version, S3352 was reported from the Senate Labor Committee, but also died without a Senate vote. The bill has been reintroduced this session as A1691. It has not yet been reintroduced in the Senate. This bill, originally sponsored by employee rights champion Senator Loretta Weinberg (now retired), seeks to strengthen the Law Against Discrimination, not weaken it.

Among many other provisions, this 40-page bill amends several provisions of the Law Against Discrimination to make it clear that the definition of “employer” not only includes the very broad definition of “Employer” contained in N.J.S.A. 5:5-5(e), but adds that the definition of Employer “includes any person who employs an individual to perform domestic work in their private residence; who employs an individual to perform domestic work in the private residence of a family member; or who is 18 years of age or older and resides in a private residence in which an individual performs domestic work.” The author imagines that it is the intent of this bill to strip away the Law Against Discrimination from all

Compounding the inexcusable errors in misreading the bill and predicting the dead bill’s imminent passage, the author makes another unsupported claim that this repeal of the ban on confidentiality agreements will cause both sides to “rejoice” that confidentiality agreements can now be universally applied. As president of NELA-NJ since before the statute was enacted, neither I nor our members have seen any decrease in settlements of cases. Yes, this was a popular refrain from those that did not want the bill passed. The reality of the past three years have proved otherwise. Cases are settled because they should be settled. No defense counsel has ever advised me that he/she is not settling a case for fear of it being made public. In fact, many claims are settled before litigation for the very purpose of avoiding a publicly filed complaint. And I am certain that if one were to ask any plaintiff’s attorney in the state if he/she ever had a case not settle because of the statute, the answer would be resounding no.

I understand that the Law Journal needs to fill the pages of its Employment Law supplement, but I am certain that, if asked, one of our members would be happy to supply a well-researched and intelligent article that is based upon correct facts and law and not the kind of misinformation contained in this irresponsible article.

Evan Goldman is a Certified Civil Trial Attorney and president of the National Employment Lawyers Association, New Jersey Chapter, and practices in Hackensack. Alan Schorr is a Certified Civil Trial Attorney specializing in employment law, in Cherry Hill. Nancy Erika Smith represents plaintiffs in employment matters and is with the firm Smith Mullin, in Montclair.

The post Ban on Non-disclosure Provisions in LAD Settlements Will Remain: That’s a Good Thing appeared first on Schorr Law | The Employment Lawyers | South Jersey Employment Attorneys.

The case was filed on behalf of Tiffany Guc and Tiffeny Carr, both former employees of Raymours who are residents of the state of New Jersey. Hired at different times, each of the women had signed an “Associate’s Agreement & Consent” (Associate’s Agreement) and an “Employment Arbitration Program” (Arbitration Agreement), with Guc signing in March of 2014 and Carr signing in 2018. Guc was subsequently fired in June of 2020 and Carr resigned in February 2021, with both women later that month filing claims under New Jersey’s Law Against Discrimination. They named the company and two of its managers, claiming disability discrimination, sexual harassment, retaliation, and unlawful termination of Guc.

In response to the lawsuit, Raymours moved to compel arbitration and stay the Law Division action, referring to terms of the agreements that both women had signed compelling that all claims go to arbitration and limiting claims to be arbitrated to those filed with the company’s arbitration administrator within 180 days. The agreements had specified that  explained that “claims” included “employment and compensation-related claims, disputes, controversies or allegations” between the employee and Raymours, including statutory claims claims under the “New Jersey Law Against Discrimination [LAD.]” The Superior Court of New Jersey, Law Division denied the company’s motion to compel arbitration, and the company appealed that decision to the Superior Court’s Appellate Division, which upheld the trial court’s decision.

When the lower court denied Raymours’ motion, it ruled that the terms of the employment agreements were “unconscionable and unenforceable” because they contained a time-limitation provision that our Supreme Court had invalidated. The case that had invalidated the time-limitation agreement also involved Raymours Furniture Company. Despite its loss in that case, Raymours not only proceeded to argue for a time limit, but never changed the terms of their company’s employment agreement in order to comply with the law. Carr’s agreement was signed in 2018, two years after the court handed down its precedential decision in an earlier case.

In its appeal of the lower court’s decision, Raymours conceded that the time limitation contained within its employment agreement was barred, but argued that the rest of the agreement’s terms were severable and should be upheld, thus permitting them to compel arbitration. The court rejected this argument, noting both that “contract terms should be given their plain and ordinary meaning” and that courts cannot “remake a better contract for the parties than they themselves have seen fit to enter into, or to alter it for the benefit of one party and to the detriment of the other.” Because Raymours “chose to link and intertwine the time-limitation concept with the agreement to arbitrate,” the court rejected Raymours’ argument in its entirety and remanded the case so that the women can continue pursuing their LAD claims in the Law Division.

Schorr Law is proud to represent Ms. Guc and Ms. Carr in their fight for their rights under the New Jersey Law Against Discrimination. If you need help navigating a challenging employment discrimination issue, contact us today to set up a time for a consultation

The post Schorr Law Scores an Appellate Win in Mandatory Arbitration Case appeared first on Schorr Law | The Employment Lawyers | South Jersey Employment Attorneys.

The state of New Jersey amended its Law Against Discrimination (NJLAD) in 2019 to ban agreements requiring employees to arbitrate employment discrimination claims that it covers. Despite that, when Gilbert Antonucci filed an employment discrimination suit against his employer, Curvature Newco, Inc. under the terms of the NJLAD, his case was dismissed and he was ordered to submit to arbitration by a trial court. The court’s decision was based on their finding that he had been sent the company’s Handbook and Arbitration Agreement and had agreed to it.

Mr. Antonucci appealed this decision, arguing first that he had not agreed to the arbitration clause within the company’s handbook as well as that the arbitration clause was pre-empted by the amendment to NJLAD passed in March of 2019. Upon review, the Superior Court of New Jersey’s Appellate Division upheld the lower court’s decision. In doing so they more closely examined the question of whether the terms of the New Jersey Law Against Discrimination could outweigh the terms of an arbitration agreement governed by the Federal Arbitration Act, as this contract was.

The court first confirmed the conditions under which Mr. Antonucci was sent the terms of the arbitration agreement and that its terms were considered assented to. Following that discussion, they discussed whether the amendment to the NJLAD was pre-empted by the FAA, and they determined that it was. This decision was largely based upon the ability of employees who believe that their rights under NJLAD to pursue those rights. Though remedies are not available in court, they can still be the subject of negotiation within an arbitration setting, and therefore the rights offered under NJLAD are not eliminated.

Interestingly, the court noted that this preemption by agreements under FAA would not preempt the NJLAD terms if the terms of an FAA agreement specifically contradicted the terms of the NJLAD. For example, if an FAA agreement provided less time for an employee to take action than the time allowed by the NJLAD, the judges indicated that the NJLAD terms would be favored.

Arbitration agreements are increasingly used by corporations looking to defend themselves against lawsuits. If you are concerned about actions that have been taken against you and need more information about your rights under the New Jersey Law Against Discrimination, contact our employment discrimination law firm today.

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Prior to the law’s passage, victims of workplace sexual assault or harassment whose employment contracts contained language requiring forced arbitration were limited in their ability to pursue justice. The issue gained national prominence after former Fox News anchor Gretchen Carlson sued Fox News chairman and CEO Roger Ailes. Though her attorneys found a workaround to the arbitration clause contained within her contract (and she eventually won $20 million in compensation), their strategy remains a mystery that Carlson cannot discuss, and few victims of harassment have the resources that she did.

Calling mandatory arbitration “a pervasive epidemic,” Carlson has spent the past several years working to end it in cases of sexual harassment and assault. Speaking of the legislation on its way to President Biden’s desk for signature she said, “Bad actors will know that women’s voices will be heard when they speak up about what’s really happening at work.”

Arbitration clauses are contained in an estimated 60 million Americans’ employment contracts. They take away the right to a jury trial, requiring instead that those in disputes with their employers agree that an arbitrator will resolve their situation. These clauses keeps employees from speaking publicly about both the problem and any solution or settlement that is reached. In the case of sexual harassment, this air of secrecy allows predators to go unpunished and to harass again.

Beyond taking harassers out of the public eye, Carlson says that forced arbitration keeps companies from improving their internal policies surrounding sexual assault and harassment. “The more that a person has the ability to make something transparent, I think, the greater the possibility that people stop doing it.” With reference to the new legislation, she expressed hope that it will “help companies get on the right side of history.”

In 2018, the U.S. Supreme Court ruled that it was legal for companies to require employees to sign arbitration clauses in their employment contracts. This made it impossible for workers to file either class action lawsuits or personal injury claims against them. The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act passed with bipartisan support, eliminating the shields they afforded to perpetrators and providing individual employees with the choice of going to court or going to arbitration based on their own preference.

Senator Lindsey Graham expressed satisfaction with the bill’s passage, predicting that companies that have relied upon its protections in the past will now have to “up their game.”

If you have been the victim of sexual assault or harassment on the job, you are not alone. Our experienced sexual harassment attorneys can help you understand your rights and the options available to you. Contact us today for more information or to set up a time to discuss your situation.

The post Forced Arbitration for Sexual Harassment or Assault Ends with New Legislation appeared first on Schorr Law | The Employment Lawyers | South Jersey Employment Attorneys.

The filing of the lawsuit is notable for many reasons.

• The timing of the precipitating event – the text message from Belichick and the corresponding interview all occurred in the last week of January — led to the claim being filed a few days later on the first day of Black History month. While the claim would have garnered national attention under any circumstances, it comes during a period when racial tensions are high and conversations about discrimination, equity, and equality are topping the daily headlines.
• The 58-page Complaint lays out a damning case against the defendants on behalf of Mr. Flores and Black players and coaches through the years, detailing historic racial bans; insider comments on double standards and failures to live up to promises of improvement; inarguable statistics on disparities between black and white hiring; the despicable use of “race-norms” as the standard by which settlement monies for retirees suffering from traumatic brain injuries was determined; and exquisite and painful details of disingenuous actions on the part of NFL owners and management.
• Flores’ personal example is exacerbated by the actions of his former employer, the Miami Dolphins franchise, which fired him and called him difficult to work with after leading the team to its first back-to-back winning seasons since 2003. Flores alleges that his termination came after refusing both a directive from the team’s owner to “tank” games and to recruit a prominent quarterback in violation of League tampering rules. The lawsuit describes these actions as reflective of the “angry Black man” trope.
• The presentation of the Complaint represents a modern shift to the way that legal documents are crafted. In addition to scrupulously laying out its points, it also includes supporting documents in the form of color photographs and digital screen shots throughout.
• The case was filed under the jurisdiction of the U.S. District Court of the Southern District of New York and lists claims under the 1866 Civil Rights Act, the New York State Human Rights Law, the New York City Human Rights Law, and the New Jersey Law Against Discrimination. It also points to violations of the league’s own Rooney Rule. It claims that the rule, which was created nearly two decades ago to combat the lack of black head coaches in the NFL and has since been expanded to include other positions, has subsequently been used disingenuously to mask the lack of equality in hiring practices.

In a televised interview given to the CBS Mornings show, Flores acknowledged that his suit alleging racial discrimination against Black coaches may forever risk his career in the league, but that the larger issue is more important. “We filed a lawsuit so that we can create some change. And that’s important to me. I think we’re at a fork in the road right now. We’re either going to keep it the way it is, or we’re going to go in another direction and actually make some real change where we’re actually changing the hearts and minds of those who make decisions to hire head coaches, executives, etc.”

Flores Case Shines Bright Light on NFL’s Discriminatory Practices appeared first on Schorr Law | The Employment Lawyers | South Jersey Employment Attorneys.

The specifics of Mr. Rios’ case should serve as a roadmap for victimized employees and as a cautionary tale for New Jersey employers. He began working for his employer, Meda Pharmaceutical, Inc. in May of 2015 and almost immediately after was twice subjected to use of the term “spick” by Tina Cheng-Avery, his direct supervisor. When he reported the offensive remarks to the company’s Director of Human Resources as required by company policy, Ms. Cheng-Avery denied her own actions and no corrective actions were taken. The HR Director’s response was described as having been “dismissive.” A short time later Ms. Cheng-Avery placed Mr. Rios on probation for what she described as “poor performance” and terminated him a few months later. At that point he filed a complaint under the New Jersey Law Against Discrimination, accusing the company of creating a hostile work environment.

When the case was first filed, Meda Pharmaceutical filed a motion for summary judgment and the trial court granted their petition. They based their decision on their belief that no rational factfinder would conclude that Cheng-Avery’s alleged comments rose to the level of being severe or pervasive enough to have created a hostile work environment. Intent on getting justice, Mr. Rios appealed that decision and the Appellate Division allowed the case to move on to the Supreme Court, which took an entirely different view of what had happened.

In its decision, the Court pointed to several specific aspects of the case that were noteworthy. The first pertained to the lower court’s decision to allow the case to be dismissed. They reminded the lower court that in a motion for summary judgment there is a requirement to view the evidence in the light most favorable to the non-moving party, which was Mr. Rios. They wrote that because Rios is Hispanic it is important to consider the impact of slurs that were directly associated with his protected group, and that the comments would have been particularly damaging when spoken by his direct supervisor, whose role is to “prevent, not create, a hostile atmosphere.”  They then went on to review the required elements of a hostile work environment, especially with reference to the fact that the specific comments would not have occurred if not for Mr. Rios’ race.

Finally, the justices of the Supreme Court noted that the company failed to take action when Mr. Rios gave them an opportunity to remedy the situation, it gave him reason to believe that the comments “portray[ed] an attitude of prejudice that inject[ed] hostility and abuse into the working environment and significantly alter[ed] the conditions of [his] employment.” The case was sent back to be heard by a jury.

If you are working in an environment where you’re subjected to derogatory, offensive comments, it is easy to feel powerless, but New Jersey’s Law Against Discrimination is on your side. For information about your rights, contact our employment discrimination law firm today to set up a time to discuss your situation.

The post NJ State Supreme Court Holds that Derogatory Language Created a Hostile Work Environment appeared first on Schorr Law | The Employment Lawyers | South Jersey Employment Attorneys.

The Original Claim

The discriminatory actions that spurred Ms. Wilson and other African American employees of NJ Transit to file their original claim were described as “far reaching and documented.” It included a pattern of unfair pay, job assignments, discipline, promotion practices, working conditions, and “regular egregious severe and pervasive harassment.” In addition, the plaintiffs alleged a pattern and practice of retaliation against those who complained about discrimination and harassment. They claimed that both the authority’s EEO and Human Resources departments and their outside counsel participated, encouraged, aided, and abetted the wrongdoing.

The details of Ms. Wilson’s claim pointed to an initial internal complaint she’d filed in 2011 after having worked for NJ Transit for over twenty years. In that complaint she alleged race and gender discrimination in her department’s disparate salaries. She was falsely told that there was nothing that could be done about it and that the pay differential between white and African American employees was based on longevity. The matter was closed. Months later she complained to the EEO Officer about ongoing harassment she was suffering at the hands of a white supervisor and supported her claim with a description of discrimination she had experienced, as well as the experiences of African American employees throughout the organization.

With no action taken in response to her complaint, Ms. Wilson and seven others filed suit seeking redress for “rampant racial discrimination, hostile work environment, and retaliation.” After fighting the claims, NJ Transit signed a $3.65 million settlement agreement on May 23, 2016.

Jose Rivera’s Witness Testimony Leads to Retaliation

At the time that the African American employees filed their claim against their employer, Jose Rivera was employed by the authority as a Senior Director in the department where Ms. Wilson worked. He reported directly to James Schworn, one of the defendants named in the original discrimination claim and was called to provide deposition testimony. Mr. Rivera filed a claim of discrimination and retaliation under the New Jersey Law Against Discrimination indication that his work life changed immediately following his initial meeting with outside counsel representing the authority.

Mr. Rivera’s claim describes how Mr. Schworn approached him and questioned him about the responses he had provided to the company’s attorneys. He cites his reputation being maligned and being denied promotional opportunities within the organization. He claimed that his requests for much-needed staffing assistance were rejected, that his job responsibilities were reduced in a way that diminished his profile within the organization, and that his department’s productivity was falsely attacked. Additionally, he was denied the opportunity to apply for a promotion for which he had previously been told he was the obvious choice.

According to Mr. Rivera, the pressure not to disclose the discriminatory treatment that he had observed was not limited to Mr. Schworn, but was also applied by the transit authority’s outside counsel. In response he prepared a memorandum describing the retaliation for NJT’s Human Resources and EEO offices, and also indicated that he had been subjected to racial/national origin discrimination with regards to his compensation. No effective remedial steps were taken by the organization. It was in light of this and the behavior continuing that he filed suit against the organization and Mr. Schworn, accusing them of having violated the New Jersey Law Against Discrimination.

The Second Claim

Following execution of the settlement agreement in May of 2016, Ms. Wilson continued to be subjected to retaliation and a hostile work environment. Though she was promised that she would no longer have contact with the offending supervisor, he and his work friends continued their discriminatory and retaliatory behaviors towards her. She was ostracized by white co-workers and became the subject of an “active campaign of on-going harassment, hostility, and retaliation.”

She filed a second discrimination lawsuit citing numerous examples of how her workload and working conditions were drastically and punitively changed and of the authority having ignored her requests for assistance. She described meetings where she was ignored and openly disrespected and the undermining and usurpation of her authority. She also indicated that the main perpetrator of the discrimination against her received a promotion and other career-related perks that he bragged to her about, indicating that despite his racist behavior, he was “untouchable.”

Before filing her second claim, Ms. Wilson had again attempted to pursue remediation through her employer’s EEO office but was told that it would take up to a year to investigate due to lack of resources. By the time she filed in 2017 there had been no formal interview and her complaints had not been investigated. Testimony provided during her first lawsuit revealed that the person at the organization who was responsible for investigating employee complaints of discrimination, harassment and retaliation had a policy of not investigating complaints that were more than a year old despite the NJLAD’s two-year statute of limitations. It was also revealed that the same individual had immediately investigated claims that had been lodged by a white employee against Ms. Wilson.

Second Settlement Reached

In response to Ms. Wilson’s second claim and the claim filed by Mr. Rivera, NJ Transit agreed to settle again, this time for a total of $3.2 million. Though Ms. Wilson left the organization in early 2018, indicating that the retaliation was making her sick, Mr. Rivera continues to work for NJ Transit. Both expressed hopes that the system’s pattern of discrimination and harassment would end and that more oversight would be provided on behalf of employees.

The New Jersey Law Against Discrimination is extremely comprehensive and provides robust protections against retaliation, as well as significant consequences for those who violate it. If you have been the victim of discrimination, harassment, or retaliation on the job based on being a member of a protected class, we can help. Contact us today to set up a time to discuss your situation.

The post No Lessons Learned – NJ Transit Settles Second Discrimination Suit Against Same Plaintiff appeared first on Schorr Law | The Employment Lawyers | South Jersey Employment Attorneys.

New Laws Passed (and Old Laws Amended) in 2021

• Vaccine Mandates – Though most had assumed that effective vaccines against COVID-19 would be welcomed by all, a large and vocal percentage of the population has refused to avail themselves of these protections. Both the federal and state governments responded with mandates. The federal government announced that workers in almost all healthcare settings, as well as federal executive branch employees and all federal contractors be fully vaccinated, and that all workers at businesses with 100 or more employees be either fully vaccinated or subjected to weekly testing. The state required the same of all workers in preschool to Grade 12 schools, as well as all workers in certain health care facilities and high-risk settings, workers at state agencies, authorities, colleges and universities, and all childcare workers. Though some questioned the legality of these actions, the Equal Employment Opportunity Commission issued a statement indicating that federal equal employment opportunity laws “do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, so long as employers comply with the reasonable accommodation provisions of the ADA and Title VII of the Civil Rights Act of 1964. The same is considered true of the New Jersey Law Against Discrimination.
• COBRA Subsidy – Another COVID-19-related action provided a 100% subsidy of premiums for employees to continue their health insurance coverage under COBRA through September 30, 2021. Under the American Rescue Plan Act of 2021, employers were required to treat those whose COBRA coverage was lost due to a pandemic-related reduction in hours or an involuntary job loss as having fully paid COBRA coverage during the six-month subsidy period.
• Minimum wage increase – The year 2021 saw New Jersey’s minimum wage increase to $12,00 per hour. The state’s Minimum Wage Law has mandated that hourly wages reach a minimum of $15 by 2024.
• State of Emergency’s End Leads to Enactment of New Employer Notice Law – On June 4, 2021, Governor Murphy signed legislation and an executive order ending the COVID-19 public health emergency. In doing so, almost all executive orders issued pursuant to the COVID-19 public health crisis expired 30 days later. The action also cleared the way for amendments to the NJ WARN Act that were supposed to have taken effect in mid-2020 but which were delayed by the pandemic. Those amendments expanded the definition of the term “mass layoff” and increased the amount of time that an employer was required to provide to employees of such an action. It also required that employees that enacted this type of job action provide severance payments equal to one week’s pay for each full year of service.
• New Rules Expand Family Leave Act Protections – In mid-October, New Jersey’s Acting Attorney General Andrew J. Bruck announced that the Division on Civil Rights had adopted amendments to the state’s Family Leave Act allowing eligible employees of covered employers to take as long as 12 weeks of leave during a 24-month period to care for or bond with a new child or to care for a family member or equivalent. The modifications extended protected family leave to include the impact of quarantines during a state of emergency or to provide care for a child due to a school or daycare’s closing during a public health emergency. The changes also expanded the definition of a covered employer to include employers with 30 or more employees worldwide, updated the definition of eligible employee to allow a person to count even if they were either laid off or furloughed for up to 90 days, broadened the definitions of family member as well as parent and child, and more.
• Legalization of marijuana – Following the state’s legalization of marijuana, many employers were left uncertain as to its impact on their internal drug use policies, but in August the New Jersey Cannabis Regulatory Commission provided that “no employer shall … take any adverse action against any employee … because that person does or does not smoke, vape, aerosolize or otherwise use cannabis items, and an employee shall not be subject to any adverse action by an employer solely due to the presence of cannabinoid metabolites in the employee’s bodily fluid.” Though employers are still able to prohibit workers from using or possessing marijuana in the workplace or during work hours, positive drug tests can no longer be used as a reason for an employment action. Work being impaired by drug use continues to be grounds for dismissal, but requires confirmation from a Certified Workplace Impairment Recognition Expert.
• Age discrimination protections expanded – In October, New Jersey extended the protections available to older workers by amending the Law Against Discrimination. Forced retirement claims are now entitled to file private lawsuits against employers, damage limits were removed for forced retirement claims, and limitations that had allowed businesses to refuse to hire or promote applicants or employers over the age of 70 have been eliminated.

Laws to be Enacted or Expected in 2022

• Employee misclassification – Effective January 1^st, misclassifying employees in order to avoid having to pay insurance premiums will become a violation of the state’s Insurance Fraud Prevention Act and will be punishable by fines of up to $5,000 for the first violation.
• Minimum wage – Effective January 1^st the state’s minimum wage will increase to $13 per hour.

As new laws are passed, our NJ employment discrimination attorneys will be fully prepared to help those who have been discriminated against. For more information specific to your particular situation, contact our office today to set up a convenient time to chat.

The post 2021 NJ Employment Year in Review and What’s to Come appeared first on Schorr Law | The Employment Lawyers | South Jersey Employment Attorneys.

According to the lawsuit filed in the Superior Court of New Jersey and subsequently removed to District Court, Ms. Darragh was “routinely berated, mocked, and ridiculed because of her age” for the first time during her tenure shortly after the arrival of Nadja Risse. Ms. Risse explicitly voiced her preference for “younger and sexy people” in the company and pointed to her own clothing – including short skirts – as a model for female employees. The lawsuit indicates that her emphasis on appearance was limited to the women in the workforce, who she also instructed in the application of makeup and use of lighting to make them look younger on Zoom calls.

Beyond the discriminatory aspects of Ms. Risse’s words, Ms. Darragh indicates that age discriminatory actions were taken towards her ability to perform her work, with prestigious accounts removed from her and given to inexperienced younger employees at a higher rate of pay than she had been provided. Eventually she was inadvertently sent an internal document indicating that she would be stripped of all of her accounts.

Despite BT Americas having an explicit age discrimination policy and procedure in place, when Ms. Darragh went to Human Resources for assistance in resolving her predicament her complaint was closed with no action having been taken. She was subsequently terminated, with the action being justified by an elimination of her position, but two younger males were quickly hired after her firing. Ms. Risse belittled her concerns about her termination, indicating that other companies would be interested in hiring her as part of a diversity and inclusion effort, indicating that her value to another employer would be as proof that they hired older workers rather than for her talents or experience.  The company later offered an alternative justification for Ms. Darragh’s termination that was based on her performance, which she believes is easily disproven by her generation of over $11 million in sales in fiscal year 2020-2021, an amount greater than that of five other salespeople combined.

Ms. Darragh’s claim against BT Americas, their parent company, and several employees cites discrimination and wrongful termination based on her age and gender in violation of the New Jersey Law Against Discrimination. It also accuses the company of retaliatory actions against her in violation of NJLAD. She is seeking reinstatement of her employment and all benefits, back pay, compensatory and consequential damages, punitive damages, and more. If you believe you have been similarly discriminated against, our experienced employment discrimination attorneys can help. Contact us today to set up a time to discuss your situation and the options available to you.

The post Woman’s Employment Discrimination Lawsuit Cites Long List of Offenses and Hostilities appeared first on Schorr Law | The Employment Lawyers | South Jersey Employment Attorneys.

Though the three women’s employer, Hackensack Meridian Health, is one of the largest hospital-and-healthcare organizations in the state and despite having received $98 million in pandemic relief to offset financial losses, executives claimed that cost cutting was required due to lower patient volumes. But the women say that patient volume was already rising, and that five other pediatric emergency room physicians who had only been hired in the last few years were retained. None of those five are board certified and all are under the age of 40.

The three veteran pediatricians got word of their terminations last February. In citing revised operational needs, executives justified their selection with an assessment that did not consider their elevated credentials, their years of experience, or the teaching and mentoring duties they all had assumed. Though the hospital is still paying their health benefits and compensated them with three months of severance, the cost-cutting excuse is belied by the fact that they retained part-time physicians who are earning more per-hour than full time doctors.

Speaking on their behalf, a representative called the hospital’s actions “brazen age discrimination,” and called them “frontline healthcare heroes” who had given decades of service to the healthcare system. “In the end they were escorted from the property by security, unable to say goodbye to their colleagues, and told they were terminated because of a reduction in force necessitated by ‘business needs’. That is unbelievable considering the hospital had recently hired five younger PEM physicians and patient volume had already begun rising in the wake of the COVID-19 vaccine.”

If you have been terminated, demoted, or passed over for a job or promotion as a result of your age, you may have the right to pursue legal action under the New Jersey Law Against Discrimination. For more information, contact our employment discrimination law firm today to set up a consultation.

The post New Jersey Pediatricians File Age Discrimination Lawsuit Against Hospital appeared first on Schorr Law | The Employment Lawyers | South Jersey Employment Attorneys.

Though the New Jersey Law Against Discrimination (NJLAD) has a well-deserved reputation for offering some of the most expansive job discrimination protections in the nation, it had previously fallen short of federal requirements in terms of the remedies available to those over the age of 70. Bill A-681 has addressed this by both eliminating employer immunity from age discrimination claims for failure to hire applicants or promote employees over the age of 70, and providing employees the right to pursue action against mandatory retirement age requirements using all of the remedies available under NJLAD.

Before the amendment was passed, New Jersey law explicitly omitted those over the age of 70 from rules prohibiting refusal to hire or promote them, and those who found themselves forced to retire had few options available to them. The new protections represent a significant change, and will mean that employers who choose not to hire or promote a person over 70 will likely need to prove that their decision was not discriminatory.

Notably, a clause permitting companies to require retirement or executives or those in high policy-making positions within a two-year period prior to retirement age if they are entitled to an “immediate non-forfeitable annual retirement benefit from a pension, profit sharing, savings or deferred retirement plan, or any combination of those plans, of the employer of that employee which equals in the aggregate at least $27,000”, remains in place and was not addressed by the amendment. This will likely create some confusion for employees who are in this elevated position.

If you are over the age of 70 and you have been passed over for a job or promotion as a result of your age, you may be able to pursue legal action. For help determining your rights and options, contact our employment discrimination law firm today to set up a time to discuss your situation.

The post New Jersey Law Against Discrimination Sees Expanded Employment Protections for Those Over 70 appeared first on Schorr Law | The Employment Lawyers | South Jersey Employment Attorneys.

Many of these refunds followed a very similar pattern. To expedite the payment of benefits, the Department of Labor paid out benefits to thousands of claimants without ever making an initial determination on their claims. The Claimants received their deserved and much needed benefits. Then the Department of Labor made an initial and incorrect determination disqualifying claimants based on incomplete information.

We  have been representing these and other frantic and injured claimants on a daily basis, often doing multiple Appeal Tribunal hearings in one day. We have surpassed the $1,000,000 mark for 2021 for refunds reversed with three more months ahead of us.  If you or someone you know has received a notice of determination, notice of request for refund, or other disqualification from unemployment, we may be able to help.

The post Schorr Law REACHES AN UNEMPLOYMENT MILESTONE appeared first on Schorr Law | The Employment Lawyers | South Jersey Employment Attorneys.

The stakes are high for both sides. The school administration has said that the case is about the “fundamental freedom of religion,” and claims that their actions were not discriminatory because they were about a basic tenet of their Catholic religion. The school’s attorneys explain that “sex out of wedlock violates a fundamental Catholic belief that the school in this instance felt it could not overlook.”

Crisitello argues that the firing was specifically about her gender and represented a sexual double standard because the school had not taken action to determine whether other staff members had also engaged in sex out of wedlock. In previous depositions the principal acknowledged that no efforts had been made to find out whether any other staff members were engaged in extramarital sex.  Crisitello’s attorney argues that the school used her pregnancy as evidence that could only be used against a woman, saying, “If you’re going to punish someone for doing something, it has to be applied equally and evenly.”

Though the school argued in court that they had fired a male teacher at another school in the archdiocese after determining that his girlfriend had become pregnant, the New Jersey appellate court wrote that there was no evidence that the school had attempted to apply its moral stance in the same way to men as to women, writing, “While a religious school employer may validly seek to impose moral doctrine upon its teaching staff, punishment singularly directed at the Hester Prynnes, without regard to the Arthur Dimmesdales, is not permissible.” The judge’s statement references female and male characters in the novel The Scarlet Letter, in which a woman was punished for having sex while her male partner was not.

The outcome of the case will be of particular interest to religious organizations across the state, as it would become the final word on questions of whether religious organizations can fire teachers over pregnancies. The Archdiocese is currently relying on the 2020 Supreme Court ruling in Our Lady of Guadalupe School v. Morrissey-Berru, which said that lay teachers, religious teachers and other staff at religious schools are not protected by federal employment discrimination laws.

If you believe you have been fired or faced a negative employment outcome in violation of New Jersey’s Law Against Discrimination, we can help. Contact our office today to set up a time to discuss your case.

The post Gender Discrimination Claim Following Firing of Pregnant Catholic School Teacher Heads to State Supreme Court appeared first on Schorr Law | The Employment Lawyers | South Jersey Employment Attorneys.

Myers began working for the company in 2019, and shortly after he was hired he began treatment for cancer. The side effects of his treatment combined with his already-existing Crohn’s disease forced him to take extended medical leave from his job. His need for sick time generated both questions and hostility.

As a result of his significant pain his physician recommended that he use medical cannabis, and he was in the process of securing authorization to join the state’s medical marijuana program when his employer asked him to undergo a drug test. The test was administered three days after Governor Phil Murphy signed legislation eliminating criminal penalties and fines for marijuana use. The same law acknowledged that employers could conduct random and pre-employment drug tests for marijuana, but prohibited firing, disciplinary action or failure to hire an applicant based on a positive test result.

Though Mr. Myers’ lawsuit is based on these prohibitions, the rules and regulations regarding enforcement have not yet become operational, as guidelines are still being written by the state Cannabis Regulatory Commission. This leaves employees caught between to different policies. In Mr. Myers’ case, the company requested proof of authorization for medical marijuana use and provided him three business days to provide it. Because he could not get an appointment with his physician in time for the deadline he was unable to provide the documentation and was subsequently fired.

Mr. Myers’ wrongful termination claim is being viewed as a test of the state’s cannabis laws. If you are a marijuana user who has been fired, disciplined, or refused employment based on a positive marijuana test, your rights may have been violated. For assistance in determining whether you have the right to pursue legal action, contact the employment attorneys at Schorr Law today to set up a time for an appointment.

The post Fired Worker Files Wrongful Termination Lawsuit Following Workplace Drug Test appeared first on Schorr Law | The Employment Lawyers | South Jersey Employment Attorneys.

Under the State of New Jersey’s Law Against Discrimination, employers are required to reasonably accommodate workers’ sincerely-held religious objections..  Despite the existence of these laws, a New Jersey mental health and substance abuse treatment center recently terminated an employee whose sincerely held religious objection prevented him from receiving a flu vaccination that the company required. Our firm is representing the painter, charging the organization with wrongful termination on the basis of religion, failure to provide reasonable religious accommodation, and other violations

The complaint and jury demand were filed on behalf of Kenya D. Lawton, a per diem painter who began working for Summit Oaks Hospital in Summit, New Jersey in October of 2019. Naming the hospital, the Delaware corporation that owns the hospital, and other individuals as defendants, Mr. Lawton’s claim explains that as a “devout and practicing Messianic Jew” he has a sincerely held religious objection to receiving the flu vaccine, and that in 2020 his employer adopted a flu vaccination policy requiring all employees to receive a flu vaccination. Despite the state’s required accommodation for employees with sincerely held religious objections, the policy only provided for employees with medical exemptions. In December of 2020 the company issued an ultimatum to Mr. Lawton and Summit Oaks’ employees, and Mr. Lawton responded by submitting an Immunization Exemption Letter from his religious leader, but the company refused to work with Mr. Lawton to find an accommodation and fired him on December 31^st, 2020.

The Complaint alleges that the company made simple accommodations available for employees with medical exemptions by requiring them to wear a mask at all times. The same accommodation would have been acceptable to Mr. Lawton, but he was fired because his request was based on religious rather than medical needs. Though the company has argued that they do not recognize religious objections and that they believe that New Jersey statute 26:2H-18.79 “explicitly does not provide for religious exemptions for flu vaccinations.” We believe that they are both factually and legally incorrect and that the statute not only doesn’t explicitly prohibit accommodations for sincerely held religious beliefs, but also doesn’t mention religious exemptions at all and does not invalidate or overrule the New Jersey Law Against Discrimination’s requirement of reasonable accommodation for sincerely held religious beliefs.

If you have been similarly discriminated against as a result of a deeply held religious belief or being a member of any other class protected under the New Jersey Law Against Discrimination, we are here to help. Contact our office today to set up a time to discuss your situation.

The post Vaccination Refusal on Religious Grounds Leads to Wrongful Termination appeared first on Schorr Law | The Employment Lawyers | South Jersey Employment Attorneys.

One of the industries that is seeing a significant amount of litigation surrounding employees moving to competing companies is solar power sales, a business that is seen as having tremendous growth potential. Employees ranging from installers to managers are moving from company to company in apparent violation of signed agreements, with employees arguing that the rules are too restrictive and employers looking to attract new talent arguing that they are quashing competition. The courts are viewing each agreement in terms of whether they are focused to the specific business and to a stated goal such as safeguarding intellectual property or trade secrets rather than being retaliatory or overly restrictive.

The legislation that has been proposed in the New Jersey state assembly would establish certain groups as being exempt from noncompete clauses, including those who have been at a job for less than one year, those low-paid employees who are nonexempt from overtime pay, and those terminated without a determination of misconduct.

While non-compete agreements are particularly valuable to industries where trade secrets are common and where the sharing of them could jeopardize a business’ competitive edge, there are many other situations like those that President Biden is trying to prevent, where low-paid employees find their ability to leave one job for a higher-paying opportunity is jeopardized. If you are concerned that you are being unfairly restricted by a non-compete agreement that you’ve signed or you have been asked to sign an agreement and you’re not sure whether you should do so, contact the employment attorneys at Schorr Law today to set up a time to discuss your situation. We are here to help.

The post The Use of Noncompete Agreements in New Jersey appeared first on Schorr Law | The Employment Lawyers | South Jersey Employment Attorneys.

Mrs. Wisenfelder filed her lawsuit under New Jersey’s Law Against Discrimination, claiming that she had been a valued employee since November 2018 but that her former employer had “discriminated and retaliated” against her for having contracted COVID-19, culminating in her termination. She says that when she told the firm’s founder and the office manager that her husband had tested positive for COVID-19 on November 9th, 2020 and that she would need to quarantine, she was both told to stay home and that she had no more paid time off available to her. In response she asserted her belief that she qualified for paid leave under FFCRA (Federal Families First Coronavirus Response Act). The next day she herself tested positive and notified her employee of her status. The firm’s founder again indicated that Mrs. Wisenfelder had no remaining paid time off and that she would not be paid during her quarantine unless she worked from home.

According to the complaint, Mrs. Wisenfelder responded to what she believed was “an egregious disregard” for her health and safety. She again asserted her eligibility for FFCRA coverage, but she believes that the firm’s founder hung up on her in response. The employee subsequently texted the firm’s founder, “I can’t believe I’m dealing with a serious illness.. I’m positive with COVID-19 and all you care about is telling me you’re not paying me for having to quarantine. Shame on you when there are things out there like FFCRA, that cost you nothing..,” and received a text in response that said, “Thank you. I accept your resignation.” Wisenfelder immediately responded that she had not resigned and did not plan to resign. She continued working while quarantining at home despite being “extremely ill.” She later learned that the entire staff had been working remotely and that four other staff members had tested positive for COVID-19, but she received no response from the firm about whether she – like all other firm members – could continue working remotely once her quarantine period was complete.

Accordingly, she submitted proof of her negative COVID-19 test on November 29th and returned to work the following day, only to find herself subjected to “a hostile work environment” in which every other employee was working remotely, she felt “ostracized,” and found that the firm’s founder “actively avoided” her. She also discovered a one-week-old job application that was apparently a response to the firm recruiting for her position. One week later she was fired by the firm’s founder, purportedly because she didn’t want Mrs. Wisenfelder “to be unhappy with her job.” Though Mrs. Wisenfelder objected and cited both her happiness and the positive feedback the firm had received about her job performance, she was told that it was her last day.

In the state of New Jersey, employees with a disability are entitled to reasonable accommodations, including for COVID-19. If you believe that you have suffered a discriminatory adverse employment action as a result of disability or illness, the experienced employment attorneys at Schorr Law can help. Contact us today to set up a time for a consultation.

The post NJ Woman Accuses Law Firm of Discriminatory Termination After Positive COVID-19 Test appeared first on Schorr Law | The Employment Lawyers | South Jersey Employment Attorneys.

The case was filed by Armando Rios, a Hispanic male who was hired by Meda Pharmaceutical, Inc. as the company’s Director of Brand Marketing. His director supervisor was Tina Cheng-Avery, who Rios claims used a racial epithet against him on two separate occasions shortly after he began working for the company. He claims that on both occasions he reported the incident to the Director of Human Resources and that no corrective action was taken. He was placed on probation by Cheng-Avery and fired within one year.

Rios filed a complaint against the company, Cheng-Avery and the Director of Human Resources, charging them with violating the New Jersey Law Against Discrimination by creating a hostile work environment and pointing to the two comments as “examples of the ongoing and severe daily harassment and … national origin discrimination perpetuated by” his supervisor.

Though the lower court and the Appellate Division ruled that no rational factfinder could conclude that the reported comments directed at Mr. Rios were sufficiently severe or pervasive to create a hostile work environment, the New Jersey Supreme Court reversed and remanded the decision, noting that the courts had a responsibility to view the evidence in a light most favorable to the plaintiff. In their decision they pointed to several legal points, including that the perspective taken should be that of a reasonable Hispanic employee in Rios’ position; that the reported comments would not have been made if not for Rios’ ethnicity; that racial epithets contribute to the sense of a remark’s severity; that the impact of racial comments is exacerbated when they are made by a supervisor;; and that though the reported remarks were counter to the company’s written policy, the company had done nothing to remedy the situation when provided the opportunity to do so.

The court’s decision both reiterates the importance of the long-ago decision regarding derogatory racial comments and allows Mr. Rios to take his case to a jury to determine whether it merits the remedies that he is seeking. If you are subjected to racial comments in the workplace or any other discriminatory actions, we can help. Contact us today to learn about your rights and the options available to you.

The post New Jersey Supreme Court Confirms Twenty-Year-Old Ruling About Use of Racial Epithets appeared first on Schorr Law | The Employment Lawyers | South Jersey Employment Attorneys.

The case before the court was Mary Richter v. Oakland Board of Education. It was filed against the school district by a teacher who suffered serious and permanent life-altering injuries following a hypoglycemic event in her classroom. Ms. Richter’s claim seeking compensation for her injuries was filed under the Law Against Discrimination (LAD). In response to her assertion that the district’s failure to accommodate her pre-existing disability had led to her injury, the Board of Education responded by arguing that she was barred from filing the claim under the LAD because workers’ compensation is an exclusive remedy, and that she was barred from a claim under the LAD because she had suffered no adverse employment action. After multiple hearings by the Appellate Division, the case arrived at the Supreme Court, which sided against the Board of Education and with Ms. Richter on both counts. In doing so, the court clarified the intent of the NJLAD, confirming that workers injured as a result of discriminatory action by their employers have robust rights in their pursuit of justice.

Looking at each of the separate issues, the Court first addressed whether a failure-to-accommodate claim under the Law Against Discrimination requires that an adverse employment action be demonstrated. The justices noted that though an adverse consequence is generally expected, there may be situations where no such consequence can be identified, clarifying that the wrongful act is the “employer’s failure to perform its duty, not a further adverse employment action that the employee must suffer.”

With reference to whether a failure-to-accommodate claim for injuries is barred by the exclusive remedy provision of the Workers’ Compensation Act (WCA), the justices noted that both the LAD and the WCA are remedial and that the Law Against Discrimination’s is given liberal construction in keeping with its “worthy purpose” of “eradication of the cancer of discrimination” in society. They recalled that the Law Against Discrimination was amended to say that “all remedies available in common law tort actions shall be available,” and pointed out that this was written while the Workers’ Compensation Act was already in place. They concluded that the two statutes “can function cumulatively and complementarily.”

This decision echoes sentiments that have been voiced repeatedly through the years by Alan Schorr on behalf of the firm’s clients, and strongly supports the rights of New Jersey employees. It makes clear the state’s sincere interest in protecting the rights of workers against discrimination.

If you have been a victim of workplace discrimination and would like to learn more about the rights available to you, contact our experienced and compassionate employment law firm today.

The post NJ Supreme Court Decision Confirms Injured Workers’ Right to Sue Under NJLAD appeared first on Schorr Law | The Employment Lawyers | South Jersey Employment Attorneys.

Pay Now or Pay Later?

During the Summer of 2020, NJDOL began paying a significant number of claims without making initial determinations. The following months have seen a flood of refund notices from NJDOL to claimants found ineligible after determinations are made. This process is still continuing. Many claimants understandably panic because they have spent the money, have no ability to repay, and were relying on the continuing income. NJDOL is no longer paying claims before making determinations. Initial determinations are often taking two months or longer, depending on the issue. This is a long time for unemployed workers to survive without a safety net, and while they are eventually paid a lump sum of all claimed benefits, that is little help to those who need the money now to pay bills and put food on the table. There is no great solution here. If unemployment benefits are paid before a determination is made, it upsets those who later receive a notice they were not eligible. If unemployment benefits are not paid until a determination is made, benefits are not being timely paid to people who really need them. Claimants need to be advised that they could be on either of these tracks. Whether they have received benefits or not, they need to continue certifying each week until a determination is made. If they received their benefits right away, they should be aware there is a chance of a redetermination later.

On Notice

There have been numerous disruptions to the administration of unemployment claims at all levels. This has led to many of the notices sent to unemployment claimants being inaccurate or untimely. The following are some of the most common issues with notices that are affecting claimants and employers alike. Some notices provide a length of time in which a claimant or employer can expect a response or decision to submitted information. However, everything is moving significantly slower than usual, which means the timeframes given are inaccurate. I have been advising claimants to add anywhere from four to 12 weeks to what is listed on notices due to the various delays. Certain issues, such as claims involving earnings in two or more states, can take even longer. Notices have not been updated to reflect the increased delays. It is important to note that the time to appeal is not extended, so parties must still file their appeals within the time prescribed on notices. However, notices still Unemployment Claims in the COVID-19 Era by Adam L. Schorr New Jersey State Bar Association New Jersey Labor & Employment Law Quarterly Vol. 42, No. 3 (April 2021) 8 Go to Index advise the parties that they can file their appeals via mail, fax, or online. While this is technically correct, appeals filed via mail or fax are taking significantly longer to process, if they are processed at all. The only way to ensure that an appeal has been received is to file the appeal through the NJDOL website and receive a confirmation number via email. Some notices are also arriving late to claimants and employers alike. This has become especially problematic with the Notice of Phone Hearing for the Appeal Tribunal Hearing. Both claimants and employers must register for their Appeal Tribunal hearing by 3 p.m. the day prior to their hearing. However, I have been involved in an increasing number of hearings in which the notice of hearing is received only days before the hearing, giving parties little time to register and prepare. It is important for everybody to note when they receive documentation from NJDOL, as the time to respond is based on both the mailing date and the date received. Keeping track of when notices are received can significantly help later in the process if it becomes an issue.

CARES Act Categories

The CARES Act created approximately 11 new categories of people who could claim unemployment benefits,4 which has been designated Pandemic Unemployment Assistance. The most commonly applied categories are (1) independent contractors and gig workers whose earnings typically do not count toward unemployment eligibility; (2) employees who cannot work due to having COVID-19; (3) employees who have less or no work due to businesses slowing or shutting down; (4) employees who have been advised by a medical professional to quarantine; and (5) employees who have to care for children who no longer attend physical school or who otherwise lost their child care.5 These categories were put into law by the federal government with no federal regulations. The primary guidance provided to the states has been a downloadable PDF on the U.S. Department of Labor website,6 which NJDOL appears to be following. NJDOL has not yet adopted any regulations regarding these categories. The best way to learn how a claimant can establish eligibility under the CARES Act is to speak with another attorney who has already participated in a hearing regarding the issue.

$231 Weekly Benefit Rate

To qualify for standard unemployment benefits in 2020, a claimant must have earned either $10,000 total or at least $200 in 20 different weeks in their base year.7 Only earnings in New Jersey are counted, and self-employment earnings are not counted.8 However, the CARES Act specifically made eligible independent contractors, gig workers, and employees who did not earn enough.9 How did New Jersey determine what these workers would be paid? The CARES Act points to the Disaster Unemployment Act, which sets the minimum payment at 50% of the Average Weekly Benefit Rate of the state in the previous year.10 For New Jersey, that was $230.35, which was rounded up to $231.11 Many claimants received this $231 weekly benefit rate because NJDOL did not have any record of self-employment earnings for these claimants. However, NJDOL has been reviewing these claims and issuing re-determinations of the weekly benefit rate based on all earnings, including self-employment earnings.12 These monetary redeterminations have been progressing, but it has been a very slow process. Claimants who were working as independent contractors and gig workers should monitor their email in case NJDOL requests information and documentation regarding their earnings.

The New “Black Hole”

The original unemployment “Black Hole” applied to claimants who quit one job for another and then did not start the second job and work at least eight weeks through no fault of their own. Claimants were disqualified from benefits due to voluntarily quitting their first job, and changing jobs was not considered good cause. That Black Hole has been amended so that claimants in that situation are not disqualified provided they were supposed to start the second job within seven days of the first job and the second job was for the same or more money and the same or more hours.13 However, there is no protection for claimants who quit their jobs in early 2020 intending to take only a brief period of time away from work but found themselves unable to rejoin the workforce because the COVID-19 pandemic eliminated so many jobs. NJDOL has consistently disqualified claimants for voluntarily leaving work without good cause in these cases, and claimants in this situation must work eight weeks and New Jersey State Bar Association New Jersey Labor & Employment Law Quarterly Vol. 42, No. 3 (April 2021) 9 Go to Index earn 10 times their weekly benefit rate to become eligible for unemployment benefits again.14 Unfortunately, this has left many claimants unable to collect benefits through nothing more than bad timing. A second subset of claimants began working after voluntarily leaving their previous employment but failed to meet the eight weeks/10 times requirement. Under current federal guidance, these claimants should be found eligible.15 NJDOL has typically been finding these claimants eligible for PUA benefits. Finally, there is the category of claimants caught in between, who accepted offers at new jobs, quit their previous jobs, and the new jobs failed to begin due to the COVID-19 pandemic. This is the situation contemplated in McClain v. Board of Review. 16 This recent New Jersey Supreme Court case found that, as long as a claimant had a job offer that met the criteria of N.J.S.A. 43:21-5, a claimant is still eligible for benefits if that job offer is revoked through no fault of the claimant.17 Claimants in this situation do not need PUA – they will be eligible for standard unemployment.

Fear of the Virus

A large and growing subset of claimants have been disqualified for benefits because they quit their job in March and April 2020 due to fear of catching the virus. Some of these claimants quit because they had an underlying medical condition or lived with somebody who did. Some of these claimants were concerned that their employer did not provide proper protection and equipment during the early weeks when such equipment was not readily available. Some did not feel comfortable or safe being around people after the governor’s orders, even if they worked in a business that was not shut down. The CARES Act18 does not provide benefits for those who quit their jobs or requested leave due to fear of catching the virus. Many of these claimants have been disqualified for benefits. There are two primary ways for these claimants to establish eligibility. First, claimants whose doctors advised that they should quarantine because their ages or underlying medical conditions put them at increased risk of the virus are eligible for benefits. The claimant must present a doctor’s note to NJDOL stating that the claimant is or was advised to quarantine. A claimant who did not get a contemporaneous doctor’s note should still get a current doctor’s note. NJDOL is not accepting verbal testimony of claimants to establish this eligibility. If a claimant quit because the claimant was living with somebody who was advised to quarantine, the claimant should present medical documentation regarding that person’s need to quarantine. This approach is not always successful depending on the surrounding circumstances, but it provides a better chance of success than proceeding without any doctor’s note. Second, a claimant who, prior to quitting, complained to the employer that the employer was not taking appropriate steps to provide a safe work environment may be eligible for benefits if the employer took no steps to remedy the unsafe condition(s). This situation is covered under regular unemployment law, not PUA, as a claimant always has good cause to quit when an employer fails to provide a safe work environment.19 Putting complaints in writing is highly recommended, and complaints to outside agencies such as OSHA can significantly increase the chance of success. The claimant must also give the employer a reasonable opportunity to remedy the unsafe condition(s). NJDOL has posted all scenarios in which claimants may be eligible for benefits related to the COVID-19 pandemic.20 Quitting and failing to meet one of the allowed criteria will result in disqualification. Fear of the virus is not a permitted criterion.

Conclusion

These are just a few of the many situations that are coming up often in unemployment claims. The CARES Act has introduced a host of new legal issues, and the current infrastructure is struggling to keep up with the deluge of new claims, causing many previously unseen administrative issues. Attorneys should familiarize themselves with the new unemployment categories as quickly as possible to best advise their clients. Having attorney representation will greatly increase a claimant’s chances of success at NJDOL.22 Adam L. Schorr is a partner at Schorr Law, P.C. in Cherry Hill. He represents claimants in unemployment claims and appeals and represents employees in a variety of other workplace disputes, including discrimination, harassment, retaliation, and contract issues.

Endnotes

1. N.J.S.A. 43:21-1, et seq. and N.J.A.C. 12:17-1.1, et seq.

2. 15 U.S.C. §§ 9001-9101.

3. Because Appeal Tribunal and Board of Review decisions are unavailable publicly, citations cannot be provided.

There have been no COVID-19 related decisions issued by the Superior Court of New Jersey, Appellate Division

or New Jersey Supreme Court to date. Therefore, many statements of law in this article remain uncited.

4. 15 U.S.C. § 9021(a)(3)(A)(ii)(I).

5. Id.

6. Available at wdr.doleta.gov/directives/attach/UIPL/UIPL_16-20_Change_1.pdf,

7. See myunemployment.nj.gov/before/about/who/#:~:text=To%20be%20eligible%20for%20

Unemployment,during%20the%20base%20year%20period.

8. N.J.S.A. 43:21-19(i)(1)-(10).

9. 15 U.S.C.A. § 9021(a)(3)(A)(i)-(iii).

10. 20 C.F.R. § 625.6.

11. See wdr.doleta.gov/directives/attach/UIPL/UIPL_11-20_Attachment.pdf.

12. See myunemployment.nj.gov/labor/myunemployment/assets/pdfs/CARES_FFRCA.pdf.

13. N.J.S.A. 43:21-5(a).

14. Id.

15. See wdr.doleta.gov/directives/attach/UIPL/UIPL_16-20_Change_1.pdf, See Question 33.

16. McClain v. Board of Review, 237 N.J. 445 (2019).

17. Id. at 464.

18. 15 U.S.C. §§ 9001-9101.

19. N.J.A.C. 12:17-9.4.

20. See myunemployment.nj.gov/labor/myunemployment/assets/pdfs/COVID-19%20SCENARIOS.pdf.

21. Id.

22. See schorrlaw.com/unemployment-hearing-statistics-year-end-2020/.

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