As with any legal issue, claims of sexual harassment involve many different legal factors that require consideration. Among these are a plaintiff’s potential damages, the statute of limitations related to the legal issue, and what exactly constitutes individual instances of harassment. These factors are made increasingly difficult to assess because of the nature of sexual harassment, especially when the harassment is pervasive as opposed to severe.

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Various court cases have provided clarity on many of the issues involved in sexual harassment cases. Karen Caggiano v. Armando Fontoura et al., helped to explain when a plaintiff’s right to file a complaint regarding sexual harassment expires, as well as what type of behavior may constitute continuous harassment.  In this case, Karen Caggiano endured years of pervasive harassment while employed as a Sheriff’s Officer in Essex County. Armando Fontoura, among others, constantly made derogatory comments relating to Ms. Caggiano’s sexual orientation and appearance. Her male coworkers regularly propositioned her for sex in extremely explicit and offensive language, and one individual went further, exposing himself to her on numerous occasions.

Fearing termination or other adverse employment action, Ms. Caggiano did not file a formal complaint regarding the harassment. However, in December 1996, Ms. Caggiano’s Captain overheard her discussing the harassment with a coworker. Her Captain ordered Ms. Caggiano to file a formal report of the conduct. Following this report, the incidents of harassment ceased, and Ms. Caggiano, along with several of the perpetrators, were transferred to different offices. A final incident of harassment occurred in February 1997, when Ms. Caggiano was assigned to attend same sexual harassment training in a group with two of her harassers. She was forced into this interaction despite the fact that there were approximately 400 employees attending the training in groups of 10. Nearly two years later, Ms. Caggiano decided to file a civil lawsuit alleging sexual harassment in the workplace.

On the morning of July 10, 2019, New York State Governor Andrew Cuomo signed new legislation into law providing protections for equal pay for women and increasing protections against race and gender based employment discrimination. The legislation was signed at the ticker-tape parade for the United States Women’s National Soccer Team, who won the World Cup on July 7th and have made headlines in recent months regarding gender-based pay disparity. The passage of these bills was a symbolic action of solidarity between New York State and the U.S. Women’s National Team, who filed an equal pay lawsuit in Federal Court earlier this year. After signing the legislation into law, Governor Cuomo stated, “We say to the U.S. Soccer League, and we say to FIFA, if you don’t pay women what you pay men, then you have no business in the state of New York.”

These three bills, signed this past summer, are part of a larger effort by the New York State to provide greater protections to employees in the state, aiming to prohibit employment discrimination based on gender and race. These laws will hopefully mark the development of a more employee-friendly workplace environment within the state. As New York is the third largest contributing state to America’s national GDP, such an improvement would be significant. New Jersey has also adopted significant employee-friendly legislation in the past two (2) years, including the New Jersey Equal Pay Act, the S121 Non-Disclosure Bill, Paid Sick Leave and amendments to the New Jersey Wage Payment and New Jersey Wage and Hour law. Following these enactments, New York’s similar enactments will serve to further enhance the protections for employees within both states, and across the region.

The first of two bills Governor Cuomo signed on July 10, Senate Bill 5248, prohibits wage differentials based on protected class status. It requires equal pay for substantially similar work when performed under similar working conditions. Similar to the New Jersey Equal Pay Act, the bill only allows for a differential rate of pay when it is based on a seniority or merit system, a system that measures earnings by quantity or quality, or a bona fide factor consistent with business necessity. Additionally, the bill lowers the burden of proof for a person claiming discrimination and provides a civil penalty for violations of the act. The stated purpose of the law is to prevent irrelevant factors – such as gender – from influencing employers in their salary distribution decisions. The passage of this law came after a wave of equal pay lawsuits have shaken governments across the United States. The bill will go into effect 90 days after its enactment.

A recent federal court decision serves as a reminder of the extremely high burden a litigant has in order to close court proceedings from the public.  In our judicial system, the doors of the courthouse open in assuring the public’s right to access to the judicial process. This federal court decision is being considered by many as a victory for the public’s freedom to access judicial information.

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In the federal case, Silvka v. YMCA of the Pikes Peak Region, a Colorado District Court struck down the defendant employer’s motion for a gag order and a motion to restrict. In the opinion, Chief Judge Brimmer’s provided a thorough explanation and insight into the public’s right to have access to judicial proceedings. The order also reflected the core principle’s espoused in Professor Eugene Volokh’s objection to the motions raised by the YMCA; that the First Amendment and the common law assert a public right to access court proceedings whether civil or criminal in nature. 

The motion for a gag order came as a result of Silvka’s complaint against the YMCA of the Pikes Peak Region. The complaint alleged that a YMCA manager sexually harassed and forcibly groped the former employee and that the YMCA failed to conduct a proper investigation into her complaints.  The allegations of the sexual harassment lawsuit include a hostile work environment that involved employees binge drinking, and male upper level personnel abusing their power by coercing young female employees to have sex with them in order to advance in the organization. Silvka claimed to be the latest victim of this culture in her complaint. In response to the complaint and its publication by local news outlets in Colorado, the YMCA sought to impose a gag order fearing the complaint’s publication would prejudice a jury against them. 

The Superior Court in New Jersey’s Appellate Division has rejected an employer’s attempt to overturn a Somerset County jury verdict finding it liable for creating a hostile work environment based upon an employee’s disability.  In the case Joseph Iko v. County of Middlesex, the Appellate Division took specific note of the overwhelming testimony of the employee’s co-workers induced at trial corroborating the employee’s claims that he was the subject to frequent verbal taunts while at work concerning his diabetes and other related medical problems.  Based upon the trial evidence, the court found that the jury rightfully applied the facts of the ongoing harassment in finding that the employee was subjected to an unlawful hostile work environment and affirmed the verdict.  In doing so, the court rejected the employer’s argument that the employee had to provide expert testimony regarding the exact qualities of his or her disability in order to proceed with his claim of a hostile work environment.

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In this case, the plaintiff Mr. Iko was employed by the Middlesex County Sheriff’s Office from 1992 until his retirement in 2017. Mr. Iko was diagnosed with Type I Diabetes early in life and had to manage his symptoms throughout his entire adult life. At times the illness caused Mr. Iko to experience related medical issues that required him to take time off from work for surgical procedures. On one occasion, Mr. Iko had to undergo a pancreas transplant procedure, which was complicated by an aortic tear. Mr. Iko also experienced issues with his eyesight.

In addition to struggling with numerous medical issues, Mr. Iko faced severe and pervasive discrimination from his supervisors and coworkers on the basis of these disabilities. Several of Mr. Iko’s supervisors and coworkers referred to him as “Eye Lab”, “Half-Dead”, “Mr. Magoo”, “Stevie Wonder” and “Walking Dead”, among other such names. These nicknames were offensive to Mr. Iko, who repeatedly asked the harassers to stop. Mr. Iko’s supervisors also directed expletives and derogatory statements toward him related to his failing pancreas and eyesight. Mr. Iko attempted to lodge a formal complaint of harassment with the Sheriff, but his Captain told him that the Sheriff would not speak with him. Unable to address the ongoing discrimination and harassment internally, Mr. Iko felt he had no choice but to file a lawsuit against Middlesex County for disability discrimination.

A recent gubernatorial task force has released a report addressing a major problem that many employees are facing across the state of New Jersey. According to the Report of Governor Murphy’s Task Force on Employee Misclassification, 12,315 employees were improperly classified as independent contractors, rather than employees, in 2018. This misclassification can cause major issues for workers by limiting their access to essential legal protections provided to New Jersey employees. There has been a growing trend of misclassification, with the number of employees misclassified as independent contractors increasing by 40% over the past decade. Unfortunately, this trend continues to create problems for workers across the State to this day, which is why Governor Murphy’s task force was so greatly needed.

New Jersey Employment Laywers
Generally, in order to determine whether a worker is properly classified as an employee or an independent contractor for wage payment law and wage and hour law purposes, New Jersey courts utilize what is known as the ‘ABC Test.’ The ABC Test starts off with a presumption that a worker is an employee. An employer can rebut this presumption only if they can establish the existence of each of the following three factors:

  • The worker is free from control or direction in the performance of their services, both under the contract and in fact;

The New Jersey Appellate Division issued an opinion last month that has provided additional clarity to what limitations a company may permissibly impose on its employees pursuant to non-competition clauses with restrictive covenant agreements. The court’s opinion (delivered in an action involving six consolidated appeals) reaffirmed the long-standing principle that employers can impose certain provisions commonly found in restrictive covenant agreements in the interest of fair competition; however, the court also held that certain other common provisions should be struck from restrictive covenant agreements as the court found them to be unduly harmful to employees.

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In ADP, LLC v. Kusins, the court reviewed the restrictive covenant agreements signed by six individual employees of the human resources management software company ADP. The agreements stipulated (in pertinent part) that upon leaving the company, the employees could not compete with ADP by soliciting the ADP clients or potential clients with whom those employees had a previous business relationship with, or whose information they became aware of during their tenure at ADP. This restriction was only applicable within the geographic area specified by the restrictive covenant agreement. This type of restriction, while seemingly onerous, has unfortunately become commonplace in our society. Despite employment attorneys making arguments to the contrary, courts have routinely upheld these types of restrictions on the basis that they do not cause undue harm to the employees. Through the recent opinion in Kusins, the Appellate Division has taken the opposite view and found that these restrictions are too great.

In their opinion, the Appellate Division identified two distinct restrictive covenant agreements signed by the six employees. The first contained traditional provisions, which the court found to be non-controversial and enforceable. In so holding, the court reaffirmed the general vitality of restrictive covenant agreements in New Jersey – coming as little surprise. The second restrictive covenant agreements signed by the employees was the main point of contention. These restrictive covenant agreements were signed via a “clickwrap” agreement by the employees and were provided only to those employees recognized as “top performers.” In exchange for signing these restrictive covenant agreements, the employees would be entitled to stock option rewards. The court acknowledged that ADP had a legitimate need to impose these additional restrictive covenant agreements on their top performers, because those employees had heightened ability to harm ADP through competition, due to their proven capacity in this industry. Nonetheless, the court soundly rejected the provisions as they were written and “blue-penciled” or edited the restrictive covenant agreements to lessen the restrictions, remove the undue harm to the employees, and render the restrictive covenant agreements enforceable.

After passing both chambers of the New Jersey legislature, yesterday Acting Governor Sheila Oliver signed S1790 into law amending the New Jersey Wage Payment law.  The amendments to the wage statute are long overdue and will provide employees with much needed legal protections against wage theft by employers. The new law strengthens existing wage law by providing steep penalties against employers that fail to timely pay their workers their earned wages and benefits.

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Wage theft occurs when employers fail to pay employees their earned wages and benefits in a timely manner. Wage theft violations can also include failure to pay minimum wage, failure to pay overtime, employee misclassification, asking employees to work off the clock, break violations, illegal deductions and other pay related violations. Wage theft is often rampant in industries with many workers in lower-wage jobs, making them particularly vulnerable to wage discrimination and retaliation. 

The amendments to the New Jersey wage statute are game-changing. They provide the much needed teeth for employees to fight back against employers who engage in wage theft.  Under the new law, an employee will now be able to seek liquidated damages in an amount up to two (2) times wages owed. The new law will also allow employees to recoup reasonable attorneys’ fees and costs incurred in litigating a wage theft claim against an employer or former employer.  The new provisions will assist aggrieved employees with access to competent wage theft employment lawyers to represent them and deter employers from committing future wage theft violations. The new law also changes the statute of limitations from 2 years to 6 years. The change to the statute of limitations is being interpreted by many employment lawyers to allow employees to bring a claim of wage violations for up to 6 years if the same violation occurs after its August 5, 2019 passage. 

A discriminatory trend has begun to become overlooked while many major companies review their anti-discrimination policies in the wake of the #metoo movement. Age discrimination remains very common in the United States, and particularly common in the technology industry. According to the EEOC, 70% of employees in the technology industry have witnessed or experienced age discrimination, while 40% of older tech workers report that they are worried about losing their jobs because of their advancing age. These statistics are highlighted by the recent influx of high-profile age discrimination suits filed against tech employers including Google and IBM. These cases have served to remind Americans that age discrimination is still rampant and must be kept in mind when pushing diversification agendas. 

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Google, or Alphabet, Inc., is one big technology corporation that has been hit hard with age discrimination suits over the last few years. The most recent of which, Robert Heath v. Google, Inc., finally reached a settlement on Friday, July 19th, in California. The current settlement offer would force Google to pay $11 million to job applicants who allege that they experienced age discrimination during their application processes. 

Mr. Robert Heath was a highly skilled engineer, with exceptional qualifications and over 30 years of experience in the field. Several years ago, Mr. Heath was recruited to submit an application for a job at Google and was subsequently offered a technical interview as a final step in the process. Mr. Heath’s interviewer was late to the interview and continuously interrupted Mr. Heath while he was answering questions. The interviewer refused to use Google’s own interface to transmit part of the technical portion of the interview, instead forcing Mr. Heath to recite lines of code over the phone. The interviewer did not engage in good faith with Mr. Heath, intentionally disrupting the interview and sabotaging Mr. Heath’s chances of being hired. Following the interview, Mr. Heath was denied the position at Google. 

An important bipartisan bill addressing pregnancy discrimination in the workplace was introduced to the United States House of Representatives on May 14, 2019, signaling a potential shift in Congressional attitudes on this issue. While this was not the first-time legislation of this type was introduced in the House of Representatives, there is reason for optimism that changing views on workplace discrimination could lead to a different result this time. Notably, the bill has attracted bipartisan support. The bill lays the groundwork for a new law that would provide further workplace protections to women who become pregnant, give birth, or suffer from related medical conditions.

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The Pregnant Workers Fairness Act (PWFA),H.R. 2694, was first introduced in the United States House of Representatives in 2012 and has been re-introduced in Congress in each subsequent session. A parallel bill (S. 1101) was also introduced in the Senate, by Senator Bob Casey, in 2017. The Pregnancy Workers Fairness Act aims to eradicate discriminatory behavior toward pregnant women by ensuring that workplace accommodations are provided to employees whose ability to perform job functions is limited by pregnancy, childbirth, or a related medical condition. The Pregnancy Workers Fairness Act is sponsored by Representative Jerry Nadler who, after introducing the Bill this year, stated, “No woman should have to choose between a healthy pregnancy and a paycheck, especially when often a simple fix – a bottle of water during a shift, an extra bathroom break, a chair – will allow women to stay on the job and support their families throughout their pregnancy.”

If the Pregnancy Workers Fairness Act is enacted, it would conform Federal anti-discrimination law in this area to the anti-discrimination laws and policies maintained by 25 states, including New Jersey. The PWFA would:

A new bill was signed into New Jersey law on July 25, 2019, that furthers a statewide effort to reduce inequality in pay for New Jersey employees.  Because Governor Murphy is out of the state on vacation, Lieutenant Governor Sheila Y. Oliver signed Assembly Bill 1094 into law yesterday after it was passed in the New Jersey Assembly on March 25, 2019 and the Senate on June 20, 2019. The new law will prohibit employers from asking or requiring job applicants to disclose their salary history during the application process. The new law is intended to address continued pay inequality and gender discrimination that has long existed in the employment environment.

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The newly enacted law prohibits employers from screening applicants based on their salary history, including prior benefits. Employers may not utilize any minimum or maximum criteria in relation to salary history to disqualify potential candidates, requiring that the application process be predicated entirely on experience and capabilities as opposed to prior salary and other irrelevant factors. Employers may only request the salary history of their applicants after they have provided them with an offer of employment that includes a compensation package. While employers may utilize an applicant’s prior salary in their compensation determinations if that information is volunteered by the applicant without coercion, an applicant’s denial to provide such information cannot be considered as a factor in any employment decisions.

The bill amends the New Jersey Law Against Discrimination, which prohibits discrimination, harassment and retaliation based on protected characteristics in employment. Specifically, it amends the New Jersey Law Against Discrimination by adding the following language: