Law Against Discrimination

New Jersey Passes Employee Misclassification Laws for Workers

January 22, 2020 | Smith Eibeler LLC

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.

The 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.

New Jersey to Propose Legislation Addressing Systemic Sexual Harassment within Political Campaigns

January 15, 2020 | Smith Eibeler LLC

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.

The 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.

NJ Court Finds Ocean Township Police Department’s Pregnancy Leave Policy Unlawful

January 7, 2020 | Smith Eibeler LLC

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.

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.

United Airlines Settles Cyber Sexual Harassment Lawsuit with EEOC

December 27, 2019 | Smith Eibeler LLC

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.

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.

New Jersey Moves Forward with Hair Discrimination Law

December 18, 2019 | Smith Eibeler LLC

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.

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.

Lift Our Voices: National Effort to Curb the Use of NDAs

December 12, 2019 | Smith Eibeler LLC

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.

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.”

Sexual Harassment on the Campaign Trail

December 11, 2019 | Smith Eibeler LLC

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.

Most 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.

New Jersey Transgender Equality Task Force Issues Recommendations to Address LGBTQ Discrimination

November 21, 2019 | Smith Eibeler LLC

The New Jersey Transgender Equality Task Force issued its report and recommendations on November 20, 2019 to address discrimination against transgender individuals of New Jersey. The New Jersey Transgender Equality Task Force, was established by Governor Murphy and its Senate and Assembly sponsors in July, 2018, convened in March, 2019 and has worked for the past six month studying a wide ranging issues of discrimination facing transgender persons, including health care, long term care, education, higher education, housing, employment and criminal justice. New Jersey’s creation of the Transgender Equality Task Force is the first in the nation.

The task force was chaired by Aaron Potenza who is the Policy and Program Manager for the New Jersey Coalition Against Sexual Assault. Mr. Potenza was joined by representatives from nine state agencies along with other experts, lawyers and health care professionals. The task force’s directive was to assess the legal and societal barriers to equality for transgender individuals in the State and to make recommendations to ensure equality and improve the lives of transgender individuals. The task force’s report, entitled “Addressing Discrimination Against Transgender New Jerseyans”, includes various recommendations to address LGBTQ discrimination, which include the following:

the Governor’s Office announcing a campaign to increase sexual orientation and gender identity data collection throughout New Jersey state agencies;

New York Becomes Latest State to Exempt Breastfeeding Moms from Jury Duty: Will New Jersey Follow?

November 13, 2019 | Smith Eibeler LLC

Another state has enacted a law to accommodate breastfeeding mothers called to jury duty. Last month, Governor Andrew Cuomo signed new legislation providing jury duty exemptions for breastfeeding mothers into New York law. New York joins seventeen other states and Puerto Rico who have enacted similar legislation to provide breastfeeding mothers necessary accommodations if called to jury duty. While New Jersey has amended the state’s anti-discrimination law in recent years to include pregnancy as a protected class and to require employers to provide breastfeeding accommodations in the workplace, there is currently is no specific law in place that exempts breastfeeding mother from jury duty. Whether New Jersey will soon follow New York’s lead remains to be seen.

Under the recent New York law, breastfeeding mothers may file an exemption from serving jury duty for two years, requiring only a doctor’s note affirming that they are currently breastfeeding at the time the exemption is filed. During the signing, Governor Cuomo noted, “While jury service is a critically important civic duty, we also know new moms oftentimes juggle countless responsibilities and navigate enormous adjustments in the early stages of their child’s life,” and that “This commonsense measure takes that reality into account by providing new moms the flexibility and option to postpone jury service while they care for a newborn.”

New York has followed the national trend in enacting similar laws to deal with the issue facing many new mothers in attempting to fulfill their civic duty while also needing to care for their newborn. In March 2017, a breastfeeding woman in Minnesota took to Facebook to share her horrific experience when having to serve on a jury while breastfeeding. As she stated in her Facebook post, Amanda Chandler was granted only two breaks to breastfeed by the clerk and judge and needed to do so in a bathroom. Ms. Chandler stated, “[s]eems pretty ironic that the very place which is supposed to uphold and enforce the laws would not follow or adhere to them.”

New Study Shows Uptick in College Sexual Assaults

November 7, 2019 | Smith Eibeler LLC

A newly released study by the Association of American Universities (AAU) has shown an increase in incidents of sexual assault and misconduct on college campuses in the United States since they last published a similar report in 2015. Using data gathered for the current study came from twenty-seven universities during the 2018 school year and 2019 spring semester; comprised of over 180,000 respondents from both public and private institutions, in both undergraduate and graduate programs. The study is yet another indicator that despite the increased public attention of the #MeToo movement, women continue to be confronted with issues of sexual harassment and sexual assault at an alarming rate.

The findings of the report categorize the respondents as male, female, transgendered, or non-identified gendered, as well as whether they were graduate or undergraduate students at the time. The findings of the report show that compared to the original 2015 report there is an increased awareness across the board on what is considered to be sexual assault and misconduct amongst all students. While this is encouraging, this finding coincides with a notable increase in sexual misconduct experienced by students even as campuses nationwide have implemented more comprehensive plans to address the problem.

According to the study undergraduate women are almost three times more likely than graduate women to encountered nonconsensual sexual contact (25.9% to 9.7%). The same holds true for undergraduate men (6.8%) when compared to graduate men (2.5%). While transgendered or non-identified gendered students also found that undergraduate students (22.8%) were subjected to more nonconsensual sexual contact than graduate students (14.5%). The study has shown that older students were less likely to experience nonconsensual sexual misconduct than their younger colleagues. This is true in the comparison of undergraduate and graduate students, but also when comparing younger undergraduates to their older counterparts. First year undergraduates were found more likely to report nonconsensual sexual contact than any other year as an undergraduate, with the rate decreasing steadily with each additional year of undergraduate study.