SERVING OUR CLIENTS AND COMMUNITY DURING COVID-19

In the wake of several recent equal pay settlements between female university professors and their employers, the newest litigation of this ilk has popped up in New Jersey. A lawsuit filed under the New Jersey Equal Pay law in state court last week by five women professors at Rutgers University alleges that they are paid significantly less than their male counterparts. Three of the five plaintiffs are world-renowned scholars in their fields, having published multiple books, hundreds of articles, given numerous presentations, and won several awards. In fact, two of the plaintiffs have achieved the most prestigious professional designation at Rutgers, and yet all five are still paid tens of thousands of dollars less than male professors with the same or less impressive credentials.

IMG_5357-300x169One of the plaintiffs, Professor Deepa Kumar, who teaches journalism and media studies and is one of the country’s leading experts on Islamaphobia, was hired in 2004 at a salary that was the same or higher than four white men and women who were hired contemporaneously. However, today, Professor Kumar makes approximately $25,000 less per year than other professors in her department despite multiple attempts to negotiate pay raises. Another plaintiff, Professor Judith Storch, a distinguished professor of nutritional sciences, recently learned that her salary was on average $46,000 lower than all other distinguished professors in biomedical science.

Remarkably, Rutgers already has in place a system of review by which professors may request wage increases in order to advance the goal of pay equity. The plaintiffs in the current lawsuit claim that system is not working. In 2018, the University’s faculty union commissioned a study that showed pay discrepancies between male and female faculty members. Overall, women faculty were paid 7% less than men. Over time, that gap can add up to a substantial amount of lost income. Professor Kumar estimates that she has lost over $300,000 since her employment with Rutgers began. Another litigant against Rutgers, Professor Nancy Wolff claims she lost $500,000. Putting that loss into terms of gender inequity, Professor Wolff pointed out that half million dollars that should have been paid to her was instead used by her employer to pay her white male counterparts at significantly higher rates than she was being paid.

Two recent New Jersey lawsuit settlements highlight the prevalent issues of sexual harassment and sex discrimination that woman police officers continue to face in the workplace.  These cases illustrate how important it is for male-dominated work environments such as police departments to take preventative measures against sexual harassment and to take immediate remedial measures when it occurs.

IMG_3469-300x169Last month, it was reported that Franklin Township settled a gender discrimination and retaliation lawsuit with a female police lieutenant, Kristen Durham for the sum of $300,000. The settlement also allows Durham to remain on paid personal administrative leave until she achieves 25 years of service credit in the New Jersey Division of Pensions, Police and Firemen’s Retirement System.

Durham, of Robbinsville, started working for the Franklin Township Police Department in 1996, where women make up only about ten percent of the department. Durham is the first and only female lieutenant. In her complaint, she alleged that her male supervisors publicly engaged in extramarital affairs and openly discussed their sexual activities. One male supervisor even ordered Durham to watch a subordinate with whom he was having an affair when he was not at work and to report back to him if any male officers spoke to her. Durham’s responsibilities included recruiting for the department and in that capacity, she personally recruited nine African American officers, and often advocated for female, Black and Hispanic officers to receive equal treatment to their white male counterparts in the department.

The absence of pay equity between men and women, commonly known as the “gender wage gap” has been a newsworthy yet unresolved manifestation of gender discrimination for decades. Pay inequities exist in virtually all industries and professions and are not limited to gender disparities.

IMG_2135-300x169Most recently, one of New Jersey’s premier educational institutions, Princeton University, settled a lengthy dispute over whether it was paying female professors equally to male professors. On average, a full-time professor at Princeton earns over $200,000 per year, but there are variations in pay that Princeton asserts are dependent on department, job performance, and the market-driven economics of filling top spots in academia. But when the U.S. Department of Labor conducted a federal pay discrimination investigation into Princeton’s compensation structure, its findings indicated discriminatory pay practices along gender lines. The Department of Labor’s review of salaries between 2012 and 2014 found that among professors, women were being paid less than men despite holding the same jobs and having the same experience and credentials.

Princeton contested the Department of Labor’s findings for years and still admits no culpability, arguing that the investigation was flawed. It has, however, finally agreed to pay nearly $1.2 million — including $925,000 in back pay and at least $250,000 in future salary adjustments — to female professors, including those who have left the university. Under the Early Resolution Conciliation Agreement between Princeton and the Department of Labor, Princeton will award back pay to the 106 female professors identified by the investigation as having been underpaid between 2012 and 2014 and award future pay raises. Princeton also agreed to analyze faculty salaries at the time of hire and in its annual merit increase process, to make sure there are no future pay gaps between male and female employees. In a statement, a Princeton spokesperson said that the university would engage in hiring initiatives in fields that typically have a low representation of women and encourage women to serve in leadership positions such as deanships. It will also train employees on pay equity.

In recent celebrity employment law news, former reality television star, Angelina Larangeira (nee Pivarnick) settled a federal employment discrimination lawsuit against the Fire Department of the City of New York (FDNY) for $350,000. Pivarnick has been working as an Emergency Medical Technician (EMT) in Staten Island since 2016, where she alleges she was the victim of sexual harassment and assault. Specifically, Pivarnick sued the FDNY as well as one of her supervisors, Lieutenant Jonathan Schechter, alleging a hostile work environment and severe sexual misconduct that took place between 2017 and 2018.

IMG_2433-300x171In the Complaint, Pivarnick alleges that she was subjected to “repeated and unwelcome sexual advances, degrading comments about her body, vulgar sexual comments, inappropriate questions about her private relationships and, in one instance, the groping of an intimate part of her body without her consent”. This sexual misconduct allegedly took place in person at her work and via text message, when her supervisor sent her a message stating, “Your ass looked amazing and I wish I wasn’t working or in uniform because I definitely would’ve kissed those amazing lips”. As in many sexual harassment cases, Pivarnick was also assaulted. In her pleadings, she alleged that in May 2018, her supervisor groped her buttock and “made contact with her vaginal area.”

At the time her suit was filed, Pivarnick released a statement: “I suffered severe sexual harassment while working for EMS and was retaliated against by my management when I complained internally. It should go without saying that what I experienced has nothing to do with television or entertainment. Like all women, I am entitled to be treated with dignity and respect at work, and I should not have to accept unwanted sexual advances, crude comments about my body, or physical assault.” In response to news of her settlement breaking, Pivarnick stated, “I said when the case was filed that it had nothing to do with television or entertainment and that remains true. Sexual harassment is serious and has devastating consequences for so many women. It has for #MeToo. Although I experienced horrendous treatment at EMS, I’m pleased with the resolution of my case and I look forward to using my voice to speak about the need to protect all women from sexual harassment.”

New Jersey Governor Phil Murphy signed legislation this month that makes it a crime to use 911 as a tool to intimidate another person based on his or her race. The bill, which has already taken effect, was introduced to the State Senate on June 29, 2020. It amends and expands the state’s existing false public alarm statute to include false incrimination and filing a false police report as forms of bias intimidation when they are done in an attempt to intimidate or harass an individual or group of individuals because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity.

IMG_5257-300x169Bias intimidation has long been a crime in New Jersey, and it occurs when a person is the target of a crime specifically because of his or her race or other protected status. When this additional layer of intent is present in the commission of a crime, it is commonly referred to as a “hate crime”. The penalties for committing a hate crime or bias intimidation are usually harsher and in addition to the penalties for committing the underlying offense. The reason for the harsher penalties is that the charge of bias intimidation is generally considered a crime of one degree higher than the most serious underlying offense. For instance, let’s assume that a Caucasian man ran his car into an African American man as he crossed the street, causing serious bodily harm, and the Caucasian man did so because of his race. Because assault by auto resulting in serious bodily injury is a crime of the fourth degree, the Caucasian driver is subject to 18 months in prison and a $10,000 fine for assault by auto. When the additional charge of bias intimidation is considered, he is now facing an additional 3-5 years in prison and $15,000 fine.

The state’s new law addressing racially-motivated 911 calls and false police reports appears to work slightly differently, however, by merging bias intimidation with the underlying crime. The statute (found at N.J.S. 2C:33-3), has been amended to add:

As drastic changes to the U.S. Postal Service (USPS) result in mail delivery delays, some postal workers have chosen to speak publicly about how these changes are impacting their work environment. Given the highly-politicized news coverage of postal service changes leading up to what is expected to be a largely mail-in presidential election, postal workers who refuse to remain silent may face retaliation from their employer.

IMG_0999-300x169Last month, Frank Bollinger, a union official representing approximately 900 members of South Jersey Area Local 0526, gave an interview to NJ Advance Media in which he described the problems he saw at work and the negative impact they were having on both his union members and the general public. After the interview was published, Mr. Bollinger received a threatening letter from his employer that indicated his job might be in trouble for speaking publicly about workplace issues. Specifically, management responded to Bollinger’s interview by sending him a letter demanding his appearance at an investigative interview. The letter had a threatening tone, reading in part that the investigative interview would be Bollinger’s “Day in Court” and that he was facing “a very serious matter.” After NJ Advance Media published a second story, outing the employer’s letter to Mr. Bollinger, management at the USPS backpedaled and backed down. Although the post office management has since canceled the investigative interview, Mr. Bollinger questioned whether he could be disciplined for speaking out or if his speech was protected under the National Labor Relations Act (NLRA).

The NLRA, however, does not apply to federal, state, or local government employees, many agricultural workers, or employees who work on interstate railroads and airlines. Congress enacted the NLRA in 1935 to protect the rights and general welfare of private sector employees, encourage collective bargaining, and curtail certain private sector labor management practices that were harming workers and the U.S. economy. It is considered an unfair labor practice for an employerto interfere with, restrain, or coerce employees in the exercise of their rights under the NLRA. Under the NLRA, employees have the right to organize, form labor organizations and labor unions, appoint representatives to engage in collective bargaining, and engage in other “concerted activities” for the purpose of collective bargaining or other workplace safety and fairness issues. Concerted activities are activities that bring workers together as a cohesive group to address work-related issues. Some examples of concerted activities are talking with co-workers about wages and benefits, circulating a petition to improve hours, participating in a concerted refusal to work in unsafe conditions, and joining with co-workers to talk directly to the employer, to a government agency, or to the media about problems in the workplace. An employer cannot fire, discipline, threaten or “coercively question” an employee for any of these activities. A single employee may also engage in protected concerted activity if he or she is acting on the authority of other employees, bringing group complaints to the employer’s attention, trying to induce group action, or seeking to prepare for group action. However, a private sector employee is not protected under the NLRA if he or she says or does something egregiously offensive or knowingly false, or if he or she publicly disparages the employer without any underlying labor controversy.

As schools scramble to figure out how best to reopen in a couple of weeks, with many opting for a fully remote start to the school year, teachers in some districts are faced with an all too familiar problem for working parents. How will they manage teaching in person and caring for their own kids at the same time? In towns that had planned to reopen with in person instruction, an increasing number of teachers whose children will be at home learning remotely are availing themselves of the 12-week leave available to them under the Families First Coronavirus Response Act (FFCRA). This leave will allow them to care for their own children while many school buildings and childcare centers remain closed.

IMG_4199-300x169The FFCRA is a temporary expansion to the Family and Medical Leave Act (FMLA) that requires certain employers to provide their employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. These provisions will apply through December 31, 2020 to covered employers (those with between 50 and 500 employees) and any employee who has been employed for at least 30 days. Employees can request leave at any time, for several reasons, including because the employee must quarantine, a dependent of the employee must quarantine, or for childcare when the child’s school or usual childcare provider is closed or unavailable for reasons related to COVID-19. When the leave is requested for childcare, employees are entitled to up to 12 weeks of partially paid leave that is subtracted from what would otherwise be their FMLA time. Employers of healthcare workers and first responders can opt out of providing this leave, and employers with fewer than 50 employees can opt out of granting leave requests specifically for childcare issues if granting the request would jeopardize the viability of the business.

Teachers who suffer from disabilities may also be entitled to accommodations, including leave of absence, if they can show the requested accommodation is reasonable and supported by medical evidence.  The Law Against Discrimination prohibits employers from discriminating against disabled employees in connection the terms and conditions of their employment.  The Law Against Discrimination also requires employers to engage in an interactive process with disabled employees who are in need for assistance, and provide them with reasonable accommodations, unless they can show it would be undue hardship on the school’s operations to provide the accommodation.

This month the New Jersey Coalition Against Sexual Assault (NJCASA) released its report, “It’s Everywhere, It’s Everything: The Report of the New Jersey Coalition Against Sexual Assault’s 2020 Survey on Misogyny & Sexual Misconduct in New Jersey Politics.” The report publishes survey results received from employees within New Jersey’s political sphere regarding their experiences of sexual harassment and misconduct in the workplace. It also makes recommendations for improving workplace culture around sexual harassment and misconduct, including increased education and training, the development of transparent, predictable reporting processes, and the creation of a culture of accountability in NJ politics.

IMG_4994-300x168Survey respondents held a variety of positions within state politics, including advocates and activists, state government employees, campaign staffers, lobbyists, partisan political operatives, staffers to elected officials, those holding elected office themselves, legislature employees, and county and municipal government employees. The largest reporting groups were advocates and activists (16%), state government employees (13%), campaign staffers (13%) and partisan political operatives (13%). The vast majority of respondents were white (85%), non-immigrant (94%), heterosexual (81%), cisgender (79%), highly-educated (89%) women (78%). As the report acknowledges, this means that this particular study provides a window into the sexual harassment and misconduct experienced and witnessed by a highly privileged group, and indicates that despite holding such privilege, these respondents were often without the proper resources to prevent, report, or obtain justice in the face of harassment and misconduct in the workplace. The report stressed the importance of interpreting the results as framed and informed by one specific type of woman.

It comes as no surprise that most survey participants (57%) reported having either experienced and/or witnessed sexual harassment and misconduct during their work in NJ politics, and that women are far more often the targets of this misconduct and more likely to report it than men. By occupation, 75% of county government employees reported experiencing harassment, and 77% of campaign staffers and 76% of lobbyists reported witnessing it. When defining the specific types of harassment encountered, verbal remarks and misogynistic comments were the most frequently reported and combined make up 45% of the total. Three percent of respondents reported having been raped. State government employees reported that misogyny is “very prevalent” in their workplaces.

On June 5, 2020, new federal legislation was introduced that would protect family caregivers from workplace discrimination. Introduced by United States Senator Cory Booker (D-NJ), the Protecting Family Caregivers from Discrimination Act would make it unlawful for an employer to (1) fail or refuse to hire an applicant because of the family caregiver responsibilities of the applicant; or (2) take adverse action or otherwise discriminate against an employee with respect to compensation, terms, conditions, or privileges of employment because of the family caregiver responsibilities of the employee. The proposed law would also make it unlawful for an employer to interfere with or restrain the employee from exercising his or her rights under the act, and to retaliate against an employee for seeking enforcement of these protections.

IMG_0999-300x169The Protecting Family Caregivers from Discrimination Act would be enforced by the Equal Employment Opportunity Commission (“EEOC”), and violations would requireproof of disparate treatment by an employer or the disparate impact of an employer’s policies on a caregiver employee. An employee alleging discrimination under this Bill would have a private right of action against his or her employer without being required to file a charge through the EEOC or exhaust any other administrative remedies first.

Primary caregiver discrimination has long been an inadequately addressed problem in our work force, with advocacy groups, research centers, and legal projects fighting for appropriate protections for decades. This legislation is supported and endorsed by many of those groups, including the Center for WorkLife Law, National Employment Law Project, the National Alliance for Caregiving, the Caregiver Action Network, Caring Across Generations, the National Women’s Law Center, A Better Balance, National Partnership for Women & Families, The Arc of the United States, and the National Domestic Workers Alliance.According to a report from the Center for WorkLife Law at the University of California-Hastings, the number of employees reporting caregiver discrimination in the workplace increased almost four-fold from 2005 to 2015. The Center for WorkLife Law also reports that 60% of caregiver employees suffer retaliatory action from employers for having family responsibilities, including reduced hours and negative performance reviews. As of 2020, the American Association of Retired Persons (AARP) found that 53 million Americans care for their dependent family members and 61% of them do so while working at a full-time job.

A New York State trial court recently ruled that the arbitration clause in an employment contract requiring an employee to submit to binding arbitration for claims against her employer, including sexual harassment claims, was unenforceable following amendments to New York State’s Human Rights Law in 2018. The decision creates a split in authority between New York State and federal courts, following a 2019 decision in the Southern District of New York upholding the enforceability of arbitration agreements in employment contracts. That court found that the Federal Arbitration Act (FAA) preempts the New York statutory prohibition. These contrasting decisions may create uncertainty around the viability of employee/employer arbitration agreements in New York as they relate to harassment and discrimination claims.

IMG_2433-300x171This confusion exists in New Jersey as well. On March 18, 2019, Governor Murphy signed legislation that, among other things, prohibits mandatory arbitration of discrimination, retaliation or harassment claims as against public policy. While other jurisdictions, including New York, have enacted similar legislation pertaining to sexual harassment claims, the New Jersey law covers all claims arising under the New Jersey Law Against Discrimination (NJLAD). The New Jersey law also states that confidential settlement agreements “shall be deemed against public policy and unenforceable”. It is important to note that the prohibition of arbitration does not apply to collective bargaining agreements. It remains unclear whether New Jersey courts will find that this state law is preempted by the FAA, but nonetheless, employers run the risk of violating the new law if arbitration provisions are included in employment contracts going forward. The new law is not retroactive. It applies “to all contracts and agreements entered into, renewed, modified or amended on or after” March 18, 2019.

Since the signing of New Jersey’s law prohibiting the inclusion of arbitration agreements in employment contracts, New Jersey courts, both state and federal, have upheld the validity of arbitration clauses that were signed before enactment of the law.

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