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The Superior Court of New Jersey, Appellate Division, recently authored a significant ruling that reaffirmed and strengthened the resolve of New Jersey’s whistleblower law, the Conscientious Employee Protection Act (“CEPA”). In Halliday v. Bioreference Laboratories, Inc., a Texas based employee, Halliday, of a New Jersey Company, Bioreference Laboratories, Inc. (“BLI”), raised numerous complaints regarding her employer’s Houston, Texas laboratory being out of compliance with the Clinical Laboratory Improvement Amendments (“CLIA”) and thus in violation of federal law. Ms. Halliday was fired within a year of raising her complaints, leading her to file a CEPA claim against her former employer.

BLI moved for summary judgment arguing that Texas law, not New Jersey law, should apply. The trial court agreed with BLI, finding that Texas law governed the issue. Moreover, because Texas law governed the issue, and Texas lacks a whistleblower law in parity with CEPA, Ms. Halliday’s claim failed.  The trial court further noted that even if CEPA applied to the issue, Halliday failed to present evidence that her termination was connected to her complaints. As such, the trial court granted BLI’s motion for summary judgment. Ms. Halliday then appealed. On appeal, the Superior Court sided with Ms. Halliday, vacated the trial court’s ruling and remanded the issue back to the trial court.

The Superior Court’s holding emphasized the core ideas of CEPA as a “remedial legislation” that was created to advance an important social goal, namely “to encourage, not thwart, legitimate employee complaint.” Pursuant to this ideal, the Superior Court looked to the definitional language used in CEPA on the terms “employee” and “employer” and held definitively that, “[CEPA] does not limit the definition of employer to persons or entities located in New Jersey, and the definition of employee is not restricted to individuals performing services in New Jersey.” This landmark holding cements the idea that CEPA is an inclusive legislation that is not fully limited to the borders of New Jersey.

Last week, in the case of East Bay Drywall, LLC v. Department of Labor and Workforce Development, the State Supreme Court upheld a determination by the Commissioner of the Department of Labor and Workforce Development (DOL) that a drywall company had been misclassifying employees as independent contractors for several years, and as a result, now owes tens of thousands of dollars in unpaid unemployment and temporary disability contributions. The Court analyzed New Jersey’s Unemployment Compensation Law, N.J.S.A. 43:21-19(i)(6)(A)-(C), colloquially known as the “ABC test” to determine whether the workers were properly classified as employees or independent contractors.

East Bay Drywall is an installation business that bids for projects and then hires subcontractors to complete those projects. Each subcontractor is hired on a per job basis and can bring on as many workers as necessary to complete the job. East Bay Drywall provides the raw materials for the work and the workers bring their own tools and perform the labor. Ultimately, East Bay is responsible for the completed project.

Up until June 30, 2013, East Bay had been reporting employee wages to the DOL. In 2016, an audit was commenced to review the company’s classification of workers it hired between 2013 and 2016, when it was no longer reporting wages. The DOL’s auditor found that four individuals and twelve business entities that had worked for East Bay during that time were improperly classified as independent contractors, and informed East Bay that it owed $42,120.79 in unpaid unemployment and short-term disability contributions. East Bay contested the audit in New Jersey’s Office of Administrative Law, where a judge concluded that only three workers had been misclassified and the other thirteen were in fact independent contractors. However, the final decision still rested with the DOL Commissioner, who ultimately upheld the findings of the audit. The Commissioner found that all sixteen workers at issue were East Bay employees under the ABC test. The company appealed, and the Appellate Division affirmed the Commissioner’s determination as to only five of the workers, finding that the other eleven were independent contractors. The Supreme Court granted certification.

New Jersey’s Law Against Discrimination provides some of the strongest protections against unlawful workplace discrimination against individual members of protected classes such as race, gender and sexual orientation. Unfortunately, even with strict anti-discrimination laws and a state-wide push towards inclusivity, numerous instances of homophobic workplace discrimination and harassment continue to rise. Recently, two New Jersey State Troopers have filed suit in the Monmouth County Superior Court,  alleging years of workplace discrimination within the NJ State Police Department, based on their sexual orientation.

Lieutenants John Hayes and Jamie Lascik joined the State Police in 2001, and have worked closely with New Jersey and the New Jersey State Police (“NJSP”) to create an inclusive and diverse workplace. Hayes, who is an openly gay man, and Lascik, who is a  gay African American woman, alleged  repeated instances of discrimination based on their sexual orientation. Their suit  alleges five violations of the New Jersey Law Against Discrimination and provides detailed situations where supervisors and other employees  subjected them to ongoing harassment for their sexual identity. As summarized in the lawsuit, the “ongoing harassment and disparate treatment constitute a continuing violation,” of the New Jersey Law Against Discrimination, and the situation consisted of a pattern of retaliatory hostility, recurring intimidation, and differential treatment by supervisors over the course of many years, up to and including 2021.

The New Jersey Law Against Discrimination is one of the most comprehensive anti-discrimination laws in the country. It prohibits employment discrimination and bias-based harassment on the basis of sex, sexual orientation, race, and multiple other factors. The New Jersey Law Against Discrimination also prohibits both the creation and allowance of a hostile work environment that occurs when an employee  shows that their severe and pervasive harassment would not have occurred but for the employee’s protected class membership status, and that a reasonable person of the same protected class would believe that the conditions of employment have been altered to where work environment is hostile or abusive. A hostile work environment based on sexual orientation occurs when an employee is subjected to harassing and unwelcome conduct that occurs because of the employee’s sexual orientation.

Employees within the Hudson County Prosecutor’s Office could face serious disciplinary action as a result of a workplace complaint investigation conducted by an outside law firm in response to unlawful employee conduct. The investigation was prompted by a series of offensive social media posts shared by Hudson County Prosecutor’s Office employees, posted on Facebook and within their internal workplace messaging app, “Slack”.

Under New Jersey law, employers must maintain an effective policy against unlawful harassment and discrimination at the workplace. With an effective anti-harassment policy in place, harassment investigations may shield an employer from hostile work environment claims under the New Jersey Law Against Discrimination. The New Jersey Law Against Discrimination is one of the nation’s strongest legal protections for employee civil rights against discrimination and threats of harassment, including sexual harassment. The New Jersey Law Against Discrimination requires employers to investigate all complaints of harassment and discrimination promptly, thoroughly and completely.

Serious hostile work environment concerns emerged at the Hudson County Prosecutor’s Office after racist jokes’ and offensive social media comments raised tensions amongst assistant prosecutors. In March 2021, the initial internal investigation began with an examination of Assistant Prosecutor Bill Specht and Agent Kelly Sisk over  “offensive and sickening” posts the two  allegedly made on social media and shared via Slack. Screenshots from March 2021, were shared of Specht’s conversations within the workplace Slack chatroom, writing that “Infoshare identifies as Mexican. It sleeps when the sun is hottest.” Specht additionally shared a number of racially offensive Facebook posts, following the police killing of George Floyd and the shooting of Jacob Blake. These posts alluded to the exoneration of law enforcement officials in officer-involved shootings, an especially controversial subject for someone in his position.  

For the past year, employees have been undergoing medical screenings and answering questions about their personal health to gain access to their physical workplaces. Employers can lawfully request their health status or require them to take leave from work if they appear to have symptoms of COVID-19. Despite laws protecting employee privacy and the dignity of being in control of our own medical decisions, the public health emergency resulting from the spread of COVID-19 has drastically changed the landscape when it comes to employment decisions based on disability or perceived disability, the duty to reasonably accommodate and the prohibition against workplace retaliation.

6AE55F99-A017-42B1-BEAB-4D7220445832-300x169The Equal Employment Opportunity Commission (EEOC) is a federal agency that enforces workplace anti-discrimination laws, including the Americans with Disabilities Act and the Rehabilitation Act. The Americans with Disabilities Act makes discrimination based on disability illegal and protects from retaliation individuals who exercise their rights under that law. Other laws, including state and local laws, such as the New Jersey Law Against Discrimination and the New York City Human Rights Law, provide employees with additional protections. Anti-discrimination laws continue to apply during the time of the COVID-19 pandemic, but they must coexist with guidelines released by the Centers for Disease Control (CDC) and state and local health authorities concerning, among other things, an employer’s right to access employees’ medical information and perform health screenings in the workplace. The intertwining of anti-discrimination laws and public health regulations in the current climate has created a question about whether a COVID-19 infection or perceived infection qualifies an employee for anti-discrimination protection based on disability. The answer will be different depending on whether federal or state law governs the employment relationship, and if state law, which state.

Disability discrimination occurs under the federal Americans with Disabilities Act when an employer treats an employee unfavorably because he or she has a disability, has a history of a disability (such as cancer that has entered remission), or because the employer believes the employee has or used to have a disability. However, not all medical conditions equate to disabilities under the legal definition of the term. A person can show that he or she has a disability in one of three ways: (1) he or she has a physical or mental condition that substantially limits a major life activity (such as walking, hearing, learning, or limits the operation of a major bodily function); (2) he or she has a history of such a disability (past depression that is currently being successfully treated); or (3) he or she is subject to an adverse employment action (such as demotion, termination or a change in job duties or pay) due to the employer’s belief that he or she has a physical or mental impairment that is more than something minor and temporary.

Nationwide, courts have responded  to COVID-19-related lawsuits and made novel decisions pertaining to cases arising from the failure to follow state and federal executive orders. Most recently, the New Jersey Superior Court denied a Defendant’s motion to dismiss for a lawsuit alleging assault and the infliction of emotional distress after she refused to follow the New Jersey mask mandate.  In denying her motion to dismiss, the New Jersey court voiced its opinion that Free Speech under the First Amendment does not extend to “maskless tirades”, especially during the peak of a global pandemic. 

In November of 2020, Lilach Kuhn, the defendant, entered Citibank’s Englewood, NJ branch without a mask in direct violation of Executive Order 122, enacted in April 2020, requiring face coverings in public spaces in an attempt to slow the spread of COVID-19. Plaintiff, bank employee Sanaa Rami, approached Kuhn and reminded her of the requirement to wear a face covering. Ms. Rami was concerned for her own and others’ health and safety. In a viral video recorded by onlookers of the incident, the Defendant erupted in a fit of rage directed at Ms. Rami and refused to adhere to the face-covering mandate.  shouted at Ms. Rami saying “I am going to court to fight masks and you are not going to tell me what to do,” and “You work for me! I do not work for you! I have been a customer since 1990. Were you born then? Shame on you!.” When Rami offered to get her a clean mask, Defendant responded yelling, “Don’t make me wear your mask! Are you trying to kill me? What happens if you have corona[virus]?” and “I am a scientist! There is no corona[virus]!” 

First Amendment rights have been referenced in arguments throughout the nation in response to and challenging COVID-19 health and safety mandates , including the constitutionality of mandatory mask mandates. During the height of the COVID-19 pandemic, many public health officials and politicians urged or required citizens to wear face-coverings to help slow the spread of the COVID-19 virus. One of the most common arguments against these mask mandates is that they infringed on the individual’s Freedom of Speech under the First Amendment. The First Amendment protects freedom of speech, press, petition, assembly and religion. This includes the right to express one’s opinions without government censorship or restraint. Freedom of speech does not include the right to incite actions that would harm others such as, as the Supreme Court famously opined in Schenck v. United States, shouting fire in a crowded theater. Accordingly, the right does not extend protection to obscenity, fighting words, and true threats. 

The United States Court of Appeals for the Third Circuit held on July 29, 2021, that a white employee’s lawsuit against his former employer for workplace retaliation under Title VII could move forward. This decision is especially notable because it is the first time the Third Circuit has issued a directive on race-based associational discrimination. In the case Kengerski v. Harper, No. 20-1307, 2021 WL 3199225 (3d Cir. July 29, 2021) the plaintiff employee alleges he was fired in retaliation for complaining about his supervisor’s racist remarks targeting his bi-racial grandniece and Black and Asian coworkers.

Title VII Retaliation vs. Harassment Claims

Title VII of the Civil Rights Act of 1964 is a federal law that prohibits employment discrimination and harassment based on race, color, religion, sex and national origin. It applies to all employers with fifteen or more employees, except for employees of the federal government, and it is enforced by the Equal Employment Opportunity Commission (EEOC). Under Title VII, an employer may not discriminate with regard to any term, condition or privilege of employment, including recruiting and hiring, deciding who to promote and transfer, assigning work, measuring performance, providing benefits and disciplining or firing. It means that no employee or job applicant can be treated differently in the workplace due to his or her protected characteristics. Importantly for the Kengerski plaintiff and others similarly situated, it also means that no employee, even if he or she is not part of a protected class, can be discriminated against at work based on his or her association with someone else who is part of a protected class. This unlawful practice is called “associational discrimination”.

As domestic travel numbers rise and airports are once again filled with travelers, airlines continue to struggle to comply with accommodations for travelers with disabilities. Most recently, a viral social media video by Bri Scalesse, who is wheelchair-bound, shows her horror and distraught emotion when informed that Delta Airlines severely damaged her wheelchair during the course of her flight from Minneapolis to Newark, NJ. Unfortunately, this isn’t an uncommon occurrence.  In 2018, 36,930 disability-related complaints were made to airlines. Airlines were reported to have lost or broken 10,548 wheelchairs or scooters in 2019, more than 1 out of every 100 they handle.

fullsizeoutput_3f-300x169Under the Americans with Disabilities Act of 1990 (“ADA”), discrimination against people with disabilities in “public accommodations” is forbidden, including but not limited to an express list of the private entities that are considered public accommodations. The list includes all terminals, depots, or other stations used specifically for public transportation, like bus, rail, and ferry stations. Notably, the list specifically excludes aircraft stations. Individuals with disabilities are often subject to discrimination when flying, met with unnecessary barriers limiting their ability to travel comfortably. While trains, buses, and other forms of transportation are forced to comply with the Americans with Disabilities Act and create accommodations, planes have been specifically exempt from the ADA. This is contrary to New Jersey’s statutory discriminatory act, the Law Against Discrimination. The recent April 2021 judicial decision from Wright-Phillips v. United Airlines made clear that public places of accommodation for disability discrimination protections under the Law Against Discrimination to include airport terminals, gates, and planes. The court ruled that “the United flight represented a place of public accommodation… [and] because the statute extends to “terminals thereof,” the United gate at Newark Airport was a place of public accommodation, too. Liability under the NJLAD, however, applies to people, not places.”

Under a federal scope, airplanes still fall under the Air Carrier Access Act (“ACAA”), which was passed four years prior to the ADA. The ACAA applies to all flights to, from, or within the United States. The ACAA prohibits airlines from discriminating against an otherwise qualified individual because the individual has a physical or mental impairment that substantially limits one or more major life activities. Physical impairments are defined as any condition relating to neurological, cardiovascular, or special sense organs, which affect major life activities consisting of manual tasks, physical health functions like breathing, speaking, or walking, and physical impairments.

On July 9th, President Biden issued an Executive Order in the spirit of promoting competition within the American economy, in hopes to lower prices of consumer goods and resources, increase wages for workers, promote innovation, and accelerate economic growth. This Order addresses nationwide threats of corporate power and anticompetitive practices, as the percentage of industries dominated by large companies continues to grow and the rate of new business formations steadily declines. Competition decline coincides with concerns for slowed productivity growth, business investment and innovation decline, and widened income, wealth, and racial inequality. The President is attempting to “level the playing field” for American workers, taking decisive action to reduce the trend of corporate consolidation, increase competition, and deliver concrete benefits to America’s consumers, workers, farmers, and small businesses.

New Jersey Employment LaywersMost notably, the Executive Order criticizes the use of non-compete agreements as an obstacle to American workers, driving down wages and limiting employees’ ability to reenter the workplace when changing jobs. Non-Compete agreements act as a “barrier to competition,” under which one party agrees not to enter into or start a similar profession or trade in competition against another party, usually outlining restrictions based on time, geography, and area of business. Non-compete agreements are a type of restrictive covenants as they restrict the worker’s ability to move freely between employers and competitors within industries. Non-competes exist to protect employers from their departing employees who could potentially use protected information they learned throughout their employment to compete against their former employers. While at first, the purpose of non-competes was to provide the employer with an additional level of protection, these agreements have transformed into a manipulative tool to control former employees and eliminate threats of competition. Because most employees cannot afford the high costs of litigation, the mere threat of litigation for breach of a non-compete agreement usually results in the employer being successful in shutting its former employer’s new employment or prospective employment.  These realities are increasingly getting the attention of state legislators who seek to reform the way non-competes can be used by employers.

This attack at non-compete agreements follows research suggesting that industry consolidation is decreasing advertised wages by as much as 17%, and tens of millions of American workers are being forced into non-compete agreements. Non-compete agreements are increasingly popular among all or most industries, oftentimes trapping employees in underpaying positions. Most notably, the overuse of non-compete agreements was criticized when Jimmy John’s, the national fast-food chain restaurant, began having employees sign non-compete agreements restricting their sandwich makers from working for competitors. In President Biden’s remarks, he referenced a similar hypothetical non-compete between McDonald’s and Burger King that would disallow a McDonald’s worker from taking a job at a nearby Burger King, asking “Come on. Is there a trade secret about what’s inside that patty?”

SUPREME COURT UNANIMOUSLY RULES THAT SUPERVISOR’S USAGE OF RACIAL SLURS AGAINST EMPLOYEE ON ONLY TWO OCCASIONS ARE ENOUGH TO ESTABLISH SEVERITY IN A HOSTILE WORK ENVIRONMENT CASE

In an unanimous opinion, the New Jersey Supreme Court has held that the use of offensive racist slurs on two occasions could meet the severe and pervasive standard required to establish a claim for hostile work environment under the New Jersey Law Against Discrimination. The is being viewed by New Jersey employment lawyers as a victory to employee rights and their right to a work environment free of discrimination.  In denying summary judgment on behalf of the employer, the race workplace discrimination case will now proceed to trial with the ultimate outcome to be decided by a jury. 

IMG_1E2345D1B7BA-1-300x225In the case, Rios, Jr. v. Meda Pharmaceutical, Inc., the employee claims that on two separate occasions, his direct supervisor called him a “sp*c” and this conduct amounted to a hostile work environment. After he reported both instances to Human Resources (HR), the supervisor placed him on a performance improvement plan and he was eventually fired.  At the end of discovery, the employer filed a motion for summary judgment to dismiss the case arguing that only two incidents were not pervasive or severe to constitute an actionable claim for hostile work environment.  The trial court granted the motion and dismissed the lawsuit. 

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