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Brennan plans to present to Weinberg working group 

TRENTON (February 18, 2020)–Sexual assault survivor Katie Brennan laid out a list of policy reform recommendations to improve the criminal justice process for victims of harassment, sexual assault and sexual misconduct in New Jersey in a letter to Sen. Loretta Weinberg and members of the Workgroup on Harassment, Assault and Misogyny in New Jersey Politics sent last week. Brennan, who has advocated for sweeping policy change since coming forward in October 2018 about her own sexual assault by senior Phil Murphy campaign and administration staffer Al Alvarez, also said she would like to present to the Workgroup about her proposals at its next hearing in March.

The New Jersey Division of Civil Rights (DCR), in partnership with the New Jersey Coalition Against Sexual Assault (NJCASA), has released its report and recommendations to address the systemic problem of sexual harassment in New Jersey. The report entitled “Preventing and Eliminating Sexual Harassment” is the culmination of information, expertise and testimony provided by various experts, advocates, survivors and state governmental organizations concerning sexual harassment and abuse within both the workplace and in places of public accommodation.  Following the release of the report, Governor Murphy announced that he will support several of the legislative initiatives recommended by the DCR to strengthen New Jersey sexual harassment law.

IMG_2433-300x171Sexual harassment at the workplace and in places of public accommodation are prohibited under the New Jersey Law Against Discrimination.   Under New Jersey state law, employers and places of public accommodation have a legal obligation to have effective anti-harassment policies in place to prevent, stop and remediate workplace sexual harassment.  The factors used by courts to determine whether an employer’s anti-harassment policy is effective are: (1) whether there are formal policies prohibiting harassment in the workplace; (2) whether there are formal and informal complaint structures for employees to report violations of the policy; (3) whether the employer provides anti-harassment training to all employees, including mandatory training for supervisors and managers; (4) whether the employer has effective sensing or monitoring mechanisms to check the trustworthiness of the policies and complaint structures; and (5) whether the employer has demonstrated an unequivocal commitment from the highest levels of the employer that harassment will not be tolerated, and commitment to the policies by consistent practice.

Employers who fail to have effective anti-harassment policies in place can be held liable for the sexual harassment of employees by supervisors, co-employees, customers or other persons associated with the business.  Similarly, places of public accommodations must also take affirmative and proactive steps to assure invitees are not subjected to sexual harassment while at their place of public accommodation.  Places of public accommodation are businesses, agencies, organizations or other entities that are open to the public.  For example, schools, retail establishments, governmental buildings and governmental campaigns are viewed as places of public accommodation.  As with any employer, places of public accommodations have the same duties to have effective anti-harassment policies in place that prevent and keep persons safe from sexual harassment.

A jury has found in favor of a former PNC Bank employee and awarded her damages $2.4 million is damages after finding she was victim of sexual harassment.  Damara Scott, a former wealth manager who worked at the PNC Bank branch in Glen Ridge, New Jersey, claimed in her lawsuit that a regular customer grabbed her and grinded into her buttocks.

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The incident concerning the alleged sexual assault took place on October 20, 2013.   Ms. Scott alleges that she was stalked by a well-known and regular customer, named Patrick Pignatello, who followed her to her car when she was attempting to leave work for the day.  Ms. Scott alleged that Mr. Pignatello proceeded to utter vulgar, sexist and racist insults and touched and grouped her from her behind.  Ms. Scott testified that Mr. Pignatello  stated to her, “No, I’m not following you.  I offer full services and I’m willing to please.”  She alleges he then pumped and grinded into her buttocks.  Ms. Scott claimed that she was able to get away from Mr. Pignatello and went to the back of her car to drop her on the trunk so she could try to fight him off.

At this time, the branch manager had informed one of the tellers that Mr. Pignatello had followed Ms. Scott to her car and ran out through emergency door towards Ms. Scott. The branch manager screamed to Ms. Scott, “Are you ok?  What did Pat do? Do you want me to call the police?”  Ms. Scott claims that she was so shocked and embarrassed she could not respond appropriately and told the branch manager that she just wanted to leave and then left.

Recent changes to the New Jersey WARN Act now guarantees severance pay for New Jersey workers terminated pursuant to certain kinds of layoffs. Governor Murphy recently signed into law several amendments to The Millville Dallas Airmotive Plant Job Loss Notification Act, commonly referred to as the New Jersey WARN Act (“NJ WARN Act”), Scheduled to come into effect July 21, 2020.  The new amendments, in addition to severance pay, greatly expand the coverage of the Act, now applying to more employers and protecting more employees.

IMG_1040-300x169The NJ WARN Act requires certain employers to provide sufficient notice to terminated employees prior to particular events, such as plant closings, operational transfers or terminations, and mass layoffs. The recent changes to the Warn Act, increases the amount of New Jersey employers subject to the notification requirement. The WARN Act now applies to all employers in the state that have operated within the state for a period of more than three years. Prior to the amendments, the Act only applied to those employers who had operated at a single location, or locations in close proximity to each other, for a period of over three years. Additionally, the amendments now provide for personal liability to those individuals acting in a supervisory role and who play a part in the decision to terminate covered employees. Accordingly, many more New Jersey employers must provide employees notice prior to terminations under the WARN Act.

The amendments also provide addition coverage to New Jersey employees. Prior to these amendments, the WARN Act previously distinguished between full-time and part-time employees, affording protections to only those employees who worked on a full-time basis. The amendments have removed distinction and now provides protections to all employees, regardless of the number of hours they work each week. Furthermore, the tenure requirement in order for employees to be afforded protections under the WARN Act has been removed. Previously, employees were not considered full-time employees under the WARN Act unless they had worked for the employer for at least six (6) of the last (12) months at the time of their termination. The WARN Act now treats all employees equally, in this respect, regardless of the length of their employment.

In recent years, allegations of sexual harassment and sexual misconduct have abounded throughout the United States, and, particularly, in the Hollywood spotlight. In response to continuing and increasing numbers of allegations of sexual harassment and misconduct in the entertainment industry, the Hollywood Commission on Eliminating Sexual Harassment and Advancing Equality formed in 2017.  The organization’s mission is “leading the entertainment industry to a strong and equitable future by defining and implementing best practices that eliminate sexual harassment and bias for all workers, especially marginalized communities, and by actively promoting a culture of accountability, respect and equality.”

fullsizeoutput_44-300x169The Commission is founded and chaired by Anita Hill, a law professor who became an icon for the #MeToo and #TimesUp movements before they existed in 1991, when she accused nominated Supreme Court Justice Clarence Thomas of sexual harassment. While Hill did not publicly oppose his nomination, a confidential FBI interview with Hill was leaked to the press, prompting Senate hearings on Justice Thomas’ nomination to be reopened. Hill testified that Thomas, her supervisor at the Department of Education and the Equal Employment Opportunity Commission (EEOC), had sexually harassed her. In light of Thomas’ denial of her allegations, Hill agreed to take a polygraph test – the results were consistent with her testimony. In Thomas’ 2007 autobiography, My Grandfather’s Son, Thomas refers to Hill as his “most traitorous adversary”. Hill’s work advocating for women in the workplace has continued, as she now leads the charge against sexual harassment in the entertainment industry.

Hill stated, “The Me-Too movement sent shockwaves throughout the Hollywood community. We all know that there is work to be done to create safe and respectful workplaces in the industry. Our next step is to understand the state of the industry today, so that we can implement effective solutions.” Recently, the Commission joined with the Ethics & Compliance Initiative, a non-profit research organization focused on empowering organizations to build and sustain high-quality ethics and compliance programs and cultures of integrity, to develop a survey.

Governor Phil Murphy has signed into law several bills that will significantly expand protections for New Jersey workers. The new legislation includes a package of bills that aim to protect the rights of workers who have been misclassified as independent contractors.  The new law provides for penalties against employers who misclassify their workers as independent contractors instead of employees.

IMG_3012-300x176The punitive aspect of the new law aims to encourage employers to appropriately designate employees as such, and therefore affording them the legal protections provided to employees under various state and federal employment laws. However, this controversial bill has sparked much debate regarding the future of workers in the “gig” economy. Opponents of the law contend that the new law will create significant financial burdens on businesses who will then in turn refuse to employ these workers.

New Jersey employment law distinguishes between two types of workers: employees and independent contractors. While regular employees enjoy and have access to wage theft protections, overtime pay, workers’ compensation, unemployment benefits, sick and family leave, health and safety, and anti-discrimination protections, independent contractors receive no such benefits. Historically, employers were required by law to pay tax contributions on employee’s wages only, and not those of independent contractors. This resulted in a scenario where it is enticing for employers to classify, and perhaps even misclassify, workers as independent contractors under any circumstance. The new legislation aims to combat such conduct and improve protections for misclassified workers.

A bipartisan team of New Jersey state legislators has announced its intention to introduce unprecedented legislation to address harassment and discrimination in New Jersey political campaigns and political parties. New Jersey is leading the push to create long-needed political campaign oversight and such legislation would be the first in the nation. The legislation comes at a time where more and more reports of rampant sexual harassment and sexual assault are brought to light in the media and in courts throughout the country.

IMG_0762-300x295The bill will create a new, independent process through which political and campaign staff and volunteers can immediately report allegations of harassment or discrimination without fear of retaliation. The proposed legislation will include clearly defined reporting processes with various reporting structures and mechanisms, codes of conduct, mandatory training, new guidelines and requirements for political campaigns and organizations, penalties for non-compliant entities and individuals, as well as oversight by at least one professional trained in supporting survivors of sexual assault.

While the new bill would create certain legal obligations specifically to campaigns concerning harassment, the dictates of the New Jersey Law Against Discrimination will continue to apply to campaigns.  The New Jersey Law Against Discrimination prohibits sexual harassment and discrimination to employees who work on the campaign and invitees of the campaign under the public accommodation provisions of the.  Invitees include persons such as volunteers, independent contractors and other persons who work on the campaign but may not be considered “employees” under the New Jersey Law Against Discrimination employment sections.

The New Jersey Appellate Division has ruled that an employer’s pregnancy leave policy that requires pregnant employees to exhaust their accrued paid sick and vacation time to be in violation the New Jersey Law Against Discrimination.  In finding for the employee in the reported decision of the the entitled Delanoy v. Township of Ocean, the analyzed the New Jersey Pregnant Workers Fairness Act, an amendment to the Law Against Discrimination dating back to January 17, 2014, which specifically made pregnancy a protected class under the state anti-discrimination law.  The court’s decision is being viewed as a significant legal victory of New Jersey pregnant worker’s rights.

The appeal arose from a suit brought by an Ocean Township police officer, alleging pregnancy-based discrimination in connection with her request for an accommodation related to her pregnancy. Specifically, she claimed that the Township’s policy regarding pregnant workers is discriminatory on its face and that the requirement that she exchange her accrued PTO as a condition of her accommodation amounted to an unlawful penalty.When Plaintiff became pregnant, she submitted a doctor’s note to the Township advising them of her pregnancy and her need to be transferred to a light-duty position. Plaintiff sought the transfer from September 22, 2014 through the end of her pregnancy, in March 2015.

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On or about September 22, 2014, Plaintiff was provided an administrative position in the Township’s Department of Records, and was further assigned to receiving walk-in complaints at the police station. In her role as the walk-in officer, Plaintiff did not feel comfortable as her pregnancy precluded the use of her firearm and the position had dangerous propensities. Nevertheless, she performed her duties as instructed. Despite her ability to work and prior to her expected due date, around February 25, 2015, the Township forced Plaintiff to take her pregnancy leave early and begin using her PTO. In total, Plaintiff was required to deplete 2 weeks of PTO.

The Pennsylvania Supreme Court recently found that a federal standard of calculating overtime is non-complaint with its state wage and hour laws. Specifically, the Court found that the Fluctuating Work Week (FWW) method of calculating overtime wages, adopted under the Fair Labor Standards Act, does not adequately compensate non-exempt employees at a time and half rate for hours worked over the standard 40 hour work week, as required by Pennsylvania Minimum Wage Act (PMWA). The FWW methods is currently used by many companies throughout the U.S., including New Jersey. Because of the similarities between Pennsylvania and New Jersey state wage and hour and wage payment laws, this decision may impact the rate at which some New Jersey’s employees are payed for their over time work.

New Jersey Employment LaywersUnder the FWW method of calculating over time, it is permissible for an employer to calculate a non-exempt employees’ wages in the following way:

  1. The employee works hours that fluctuate from week to week;

The United States Equal Employment Commission (“EEOC”) has announced that it has settled a discrimination lawsuit in the amount of $321,000 against the United Airlines involving issues of cyber sexual harassment. The Flight Attendant alleged in her pleadings that United Airlines was negligent in allowing ongoing sexual harassment and cyber bullying of a pilot after she broke up with him in 2006 and therefore was responsible for creating at hostile work environment.

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In the filed Complaint, the Flight Attendant alleges that she was engaged in a consensual intimate relationship with a United Airlines pilot from 2002 through 2006.  During the consensual relationship, the Flight Attendant permitted the pilot to take photos and videos of her in provocative poses. The Flight Attendant alleges that the pilot also took at least one photograph and/or video with her knowledge or permission.  In or about 2006, one of the Flight Attendant’s co-workers informed her that he had seen nude photos of her on an internet website for “swingers.” The co-worker told the Flight Attendant that he was led to believe that he had been “chatting” with her on the internet and that he had believed that she had personally emailed him additional photos after they had been communicating directly. Because of the conversation with the co-worker, the Flight Attendant came to believe that the pilot was the person responsible for posting and circulating the nude images of her on the internet.  The Flight Attendant ended the relationship with the pilot after confronting the pilot about him posting the photos and videos without her permission or authorization.

The lawsuit alleged that the pilot continued to regularly post the sexually explicit photos and videos over the next decade, from 2006-2016.  The Flight Attendant came to learn that the images and videos were viewed by at least two of her United Airlines co-workers and tens of thousands of other United Airlines personnel and coworkers.  Despite her repeated complaints and obtaining an injunction, the pilot continued posting the videos and pictures on the internet.  The pilot repeatedly referred to the Flight Attendant by name and her occupation and home airport, which she alleged he did intentionally to affect the terms and conditions of her employment.