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.

Employment Lawyers
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.

Earlier this week, New Jersey’s Assembly and Senate passed a ban on discrimination associated with hair. Discrimination based on hair has been popping up in courtrooms and legislatures across the country. Once Governor Murphy signs off, it will be unlawful to discriminate based upon hair.

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In several states, bills have been proposed to increase protections from hair based discrimination. The New Jersey State Assembly Labor Committee approved a bill this past summer to ban discrimination based upon hairstyles and textures that are traditionally associated with race and is considered a form of race discrimination. The bill was prompted by a December 2018 incident involving a New Jersey high school wrestler forced by a referee to cut his hair, styled in locs, or forfeit the match. The bill was proposed by Assemblywoman Angela McKnight, Hudson County’s representative, following the outrage surrounding the wrestler’s forced hair cut—performed publicly by the referee, in front of spectators. The bill, originally introduced this summer that was recently passed, amends the New Jersey Law Against Discrimination to reflect that “race” is inclusive of traits “historically associated with race, including, but not limited to, hair texture, hair type, and protective hairstyles.” “Protective hair styles includes, but is not limited to, such hairstyles as braids, locks, and twists.”

The New Jersey Law Against Discrimination prohibits employers and places of public accommodation from discriminating against employees and other persons.  While race has long been recognized as a protected class of persons protected by the state discrimination law, the New Jersey law will specifically prohibit discrimination based upon hair, if the governor signs it into law.

On December 11, 2019 at The Hollywood Reporter’s Annual Women in Entertainment breakfast gala, Gretchen Carlson announced the formation and launch of “Lift of our Voices,” an education and advocacy organization focused on putting an end to the practice of using Non-Disclosure Agreements (“NDAs”) to silence victims of sexual harassment and discrimination. In making the announcement, Carlson was joined on stage by Charlize Theron, an actress who is portraying Megyn Kelly in the upcoming film “Bombshell,” which details the Fox News sexual harassment scandal that saw then-CEO Roger Ailes forced to resign from the company. Carlson’s sexual harassment complaint against Ailes ultimately lead to his resignation, but her settlement with Fox News, and the NDA she was required to sign to enter into that settlement, have prevented her from speaking publicly about the case.

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An NDA is a contract that identifies certain information or topics that the parties agree they will not discuss with anyone following execution of the contract or agreement. NDAs typically are entered into in connection with an additional contract or agreement, such as an employment contract or a settlement or severance agreement. Often in the context of employment contracts, a prospective employee will agree not to discuss or disclose certain information regarding their employment to anyone outside the company, in exchange for being hired. In the context of settlement or severance agreements, a departing employee agrees not to discuss or disclose certain information regarding their employment or their reason for leaving the employment, in exchange for a settlement or severance payment.

In either situation, the NDA agreement can be used by the employer to facially “resolve” issues of harassment and discrimination without truly addressing systemic issues within their organization. In such a case, new prospective employees are unaware that they are entering a workplace where they may be unsafe. The public at large is likewise kept unaware, and individuals will then unwittingly support companies that they otherwise may choose not to support. Consumers are unable to apply commercial pressure to businesses that harbor and protect harassers, allowing those companies to circumvent a powerful societal check on business practices. Carlson and her organization are aiming to solve this problem, to give society at large access to this information, and more importantly, as Carlson stated, to give victims “back the voices they deserve.”

The #MeToo movement has shined much-needed light on the prevalence of sexual harassment within political campaign organizations.  Operating a political campaign, a transient organization — comprised of the candidate, and his or her workers, applicants, consultants and invitees – presents unique challenges. These challenges, however, do not shield campaigns the legal obligation to keep women safe from sexual harassment and misconduct within the campaign environment.  Women who are sexually harassed while working in campaigns are increasingly speaking, including filing lawsuits against the campaign entities when they fall victim to sexual harassment and assault.

fullsizeoutput_44-300x169Most recently, it was reported that a Chicago-based political staffer, Alaina Hampton, settled a sexual harassment lawsuit against a campaign, several political entities, and the campaign supervisor who sexually harassed her.  Ms. Hampton, a former political staffer and campaign manager, filed the lawsuit in March 2018.  She first began working on Chicago-based political campaigns in 2012 after graduating college with a degree in political science.  In or about July 2016, Ms. Hampton began working on three separate democratic campaigns for the Democratic Party of Illinois for which she was paid a salary.  Kevin Quinn, Ms. Hampton’s supervisor, was a well-known, high-ranking political operative for Speaker Madigan and the Madigan Defendants. Mr. Quinn directed Ms. Hampton’s work on any one of the three campaigns to which she was assigned.

Shortly after Ms. Hampton began working with Mr. Quinn, she alleges he began to subject her to severe and pervasive sexual harassment.  According to Ms. Hampton’s complaint, Mr. Quinn regularly pursued Ms. Hampton for a romantic and sexual relationship. Mr. Quinn’s purported sexually harassing behavior included repeated late-night text messages asking Ms. Hampton out, telling her she was “smoking hot,” and insisting she go out with him. Ms. Hampton asserts that she repeatedly told Mr. Quinn that she did not want to become involved with him and wanted to keep their relationship professional.  Ms. Hampton alleges that despite her repeated rejections, Mr. Quinn refused to take “no” for an answer.

A New Jersey Appellate Division has denied an appeal of a whistleblower verdict in favor of a state employee against her former employer the State Department of Corrections.  The plaintiff, Meg Yatauro, brought her claim under the New Jersey whistleblower law known as the Conscientious Employee Protection Act, alleging that she suffered adverse employment action as a result of objecting to several improprieties over the period of years concerning the misuse of public funds.  After a lengthy trial, the jury agreed that Ms. Yatauro was retaliated for her whistleblowing activities and awarded her $1,000,000 in damages for emotional distress and economic losses.

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In this case entitled Meg Yatauro v. State of New Jersey, Gary M. Lanigan, Judy Lang, Mark Farsi, the plaintiff, Ms. Yatauro, began working for the Department of Corrections in civil service positions in 1984.  After nineteen years, Ms. Yatauro was promoted to the assistant superintendent position at Northern State Prison.  She was later transferred to Mid-State Correctional Facility, which she remained for two years, before being transferred to Central Reception and Assignment Facility, where she was promoted to associate administrator.  In 2012, Ms. Yatauro was transferred to the Albert C. Wagner Youth Correction Facility in an administrator position, where she alleged the whistleblowing and resulting retaliation took place.

The judge permitted Ms. Yatauro to present evidence of several whistleblowing events to the jury during the trial.  First, Plaintiff complained to her supervisor concerning the Chief of the Special Investigations Division having his Trenton office painted using funds out of the correction facilities budget at a time it had its own urgent need for repairs.  Another complaint was aslo related to an issue of misuse of funds involving another supervisor made unauthorized credit card purchases and permitted maintenance staff to work overtime without Ms. Yatauro’s approval.

Whether a worker is afforded protection under federal and New Jersey employment laws is often determined whether they are an employee or an independent contractor. Many employment laws provide protection only to employees, with little to no protection for independent contractors. For example, employees have access to wage theft protection, overtime pay, workers’ compensation, unemployment benefits, family leave laws, health and safety, and anti-discrimination protections, whereas independent contractors may not. In situations where a worker is misclassified as an independent contractor, rather than an employee, that worker can be deprived of the protections that they are entitled to under the law.

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Classification of whether a worker is an employee or an independent contractor has become more and more important in our going growing technological economy. The growing accessibility of technology provides a vast digital marketplace that is now at the fingertips of millions of consumers. App-based companies, such as Uber, Lyft, and Postmates have taken advantage of this accessibility and services quickly and conveniently. To accomplish this goal, these companies typically elicit services from workers on a job-by-job basis, commonly referred to as “gigs”. As this “gig” economy expands and becomes a more viable source of income for many workers, it brings to the surface questions with respect to the classification of the workers engaging in it.

As a result of the increasing frequency of worker misclassification, New Jersey organized the Task Force on Employee Misclassification to investigate and address the issue.  In its July 2019 report, the Task Force found that while prominent within the “gig” economy, this misclassification extends to workers many sectors, especially those in labor-intensive and low-wage positions. In fact, Federal studies and state-level agency audits suggest that between 10 and 30 percent of employers have misclassified employees as independent contractors, a number that has grown by upwards of 40% in recent years. In addition to depriving employees of protections under the law, these employers have avoided payment of income taxes as well as contributions to social programs, such as Social Security, on the misclassified employees.