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So far Frank Custode has created 81 blog entries.

Is Treatment for Infertility Covered Under Federal Anti-Discrimination Law?

In general, Title VII of the Civil Rights Act of 1964 (“Title VII”) is a federal law that makes it unlawful to discriminate against an individual based of race, color, religion, national origin, or gender. In addition, under Title VII, it is unlawful to retaliate against an individual because the individual complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.

Here is a scenario:  An employee is undergoing treatment for infertility treatment.  The employee advises her supervisor about the treatment.  However, the supervisor is concerned that the treatment will interfere with the employee’s job responsibilities, and shortly thereafter, the employee is demoted to a position with less significant job responsibilities.

In the above scenario, does the demotion constitute gender discrimination under Title VII?  The Equal Employment Opportunity Commission (“EEOC”) answers this question in the affirmative.

Specifically, the EEOC states that “Employment decisions related to infertility treatments implicate Title VII under limited circumstances. Because surgical impregnation is intrinsically tied to a woman’s childbearing capacity, an inference of unlawful sex discrimination may be raised if, for example, an employee is penalized for taking time off from work to undergo such a procedure.”  See EEOC Enforcement Guidance on Pregnancy Discrimination and Related Issues, Notice Number 915.003, June 25, 2015.  In addition, issues under the Americans with Disabilities Act (“ADA”) may also be implicated.

Based on the above, it is important that employees undergoing infertility treatment have a clear understanding of their rights in the workplace.

New Jersey Senate Proposes Legislation That Would Prohibit Credit Report Discrimination

On March 26, 2018, the New Jersey Senate passed Bill Number S545, which would prohibit employers from obtaining, requiring or discriminating against current or prospective employees based on credit reports.

Specifically, under the proposed law, no employer shall “seek to obtain or require a current or prospective employee to provide or consent to the creation of a credit report that contains information about the current or prospective employee’s credit history, credit score, credit account balances, payment history, savings or checking account balances, or savings or checking account numbers, unless the employer is required by law to obtain a credit report, or the employer reasonably believes that the employee has engaged in a specific activity that is financial in nature and constitutes a violation of the law.”  In addition, under the proposed law, no employer shall “discharge, demote, suspend, retaliate, refuse to hire, or otherwise discriminate against a current or prospective employee with regard to promotion, compensation, or the terms, conditions or privileges of employment, based on information in a credit report on the employee.”

However, an employer may make a credit inquiry if credit history is an established bona fide occupational qualification of a particular position or employment classification.  Under the proposed law, credit history shall be considered a bona fide occupational qualification for a position that (1) is a managerial position which involves setting the financial direction or control of the business; (2) involves access to the personal belongings, financial assets or financial information (other than information that is customarily provided in a retail transaction) of customers, employees or employers; (3) involves a fiduciary responsibility to the employer, including but not limited to, the authority to issue payments, transfer money or enter into contracts or involves leases of real property; (4) provides an expense account for travel; or (5) is as a law enforcement officer for a law enforcement agency in the State of New Jersey, or is as governmental or non-governmental security personnel.

Significantly, the proposed law prohibits retaliation or discrimination against an individual because the individual has done or is about to do any of the following: (1) files a complaint under the law; (2) testifies, assists, or participates in an investigation, proceeding, or action concerning a violation of the law; or (3) otherwise opposes a violation under the law.  Lastly, under the proposed law, “an employer shall not require an individual to waive or limit any protection under [the act] as a condition of applying for or receiving an offer of employment.” The proposed bill is currently under consideration by the New Jersey General Assembly.

Senate Bill Seeks To Bar Waiver of Jury Trials and Non-Disclosure Provisions In New Jersey Law Against Discrimination Matters

On June 7, 2018, the New Jersey Senate passed S-121, which among others, would prohibit the waiver of “any substantive or procedural right or remedy” relating to claims under the New Jersey Law Against Discrimination, and would prohibit employers from having non-disclosure provisions in settlement agreements involving disputes under the LAD.

Specifically, the bill provides that “a provision in any employment contract that waives any substantive or procedural right or remedy relating to a claim of discrimination, retaliation, or harassment shall be deemed against public policy and unenforceable.”  In addition, the bill states that “no right or remedy under the ‘Law Against Discrimination’ or any other statute or case law shall be prospectively waived.”  Therefore, in essence, this bill would prohibit the prospective waiver of jury trials in disputes under the LAD.  Moreover, the bill would further limit the enforceability of arbitration agreements (which waive an employee’s right to a jury trial) regarding employment disputes under the LAD.  This aspect of the bill would be a significant win for employees given that the enforceability of agreements that waive the right to a jury trial are often contentious disputes in employment law matters.

In addition, the bill contains a provision that would eliminate non-disclosure provisions in agreements, including settlement agreements.  Specifically, the bill provides that “a provision in any employment contract or settlement agreement which has the purpose or effect of concealing the details relating to a claim of discrimination, retaliation or harassment shall be deemed against public policy and unenforceable.”  If enacted, this aspect of the bill would fundamentally change the negotiation of discrimination and harassment claims since confidentiality is usually a standard term required by employers.

The bill also prohibits an employer from taking any retaliatory action (such as a discharge, suspension, or demotion, etc.) against an employee who refuses to enter in an agreement that contains a provision deemed to be contrary to public policy and unenforceable; and affords aggrieved individuals the right to commence legal action in the Superior Court of New Jersey.

New Jersey Equal Pay Act In Effect On July 1, 2018

To follow-up one of my earlier blogs, the Diane B. Allen Equal Pay Act (“the New Jersey Equal Pay Act”) is in effect on July 1, 2018.  The law protects all classes recognized under the New Jersey Law Against Discrimination.  Specifically, the law makes it an unemployment practice “[f]or an employer to pay any of its employees who is a member of a protected class at a rate of compensation, including benefits, which is less than the rate paid by the employer to employees who are not members of the protected class for substantially similar work, when viewed as a composite of skill, effort and responsibility.”

The New Jersey Equal Pay Act, however, expressly provides for narrow, itemized legally permissible reasons for offering employees a different rate of compensation.  In addition, the law enhances the damages available to prevailing employees under the New Jersey Law Against Discrimination.  Indeed, a prevailing party may be awarded three times the amount of monetary damages (known as treble damages) for unlawful discrimination or retaliation under the New Jersey Equal Pay Act.

The Act is a game-changer for employees in the State of New Jersey as they will now be afforded additional protection for unlawful differential in compensation.  For more details on the New Jersey Equal Pay Act, please see https://custodelaw.com/discrimination/new-jersey-legislature-passes-comprehensive-equal-pay-act.

New Jersey Assembly Seeks To Limit Restrictive Covenant Agreements

On May 10, 2018, the New Jersey Assembly Labor Committee advanced a bill (Assembly Bill A1769) that would provide for certain limitations on restrictive covenant agreements (in particular, non-compete agreements) between employers and employees.   If enacted, employers in the State of New Jersey would certainly have a more difficult time attempting to enforce restrictive covenant agreements given the onerous nature of the proposed legislation’s requirements; and employees who sign restrictive covenant agreements in compliance with the proposed legislation would have less post-employment restrictions imposed on them.

Under the proposed legislation, a restrictive covenant is enforceable if it meets the following requirements:  if the agreement is entered into at the commencement of employment, the employer must disclose the terms in writing to the prospective employee by the earlier of a formal offer of employment or 30 business days prior to the commencement of employment; if the agreement is entered into after the commencement of employment, the employer must provide the agreement to the employee at least 30 business days before the agreement is effective; the agreement must be signed by both the employer and the employee and state that the employee has the right to consult with counsel; the agreement shall not be broader than necessary to protect the legitimate business interests of the employer, including the employer’s trade secrets or other confidential information, such as sales information, business strategies and plans, and customer or price information; the agreement may not restrict the employee from engaging in competitive activity for more than 12 months; the agreement must be reasonable in geographic scope, must be limited to the area where the employee provided services or had a material presence in the two years prior to the employee’s termination, and may not restrict the employee from seeking employment in other states; the agreement shall be reasonable in the scope of the proscribed activities in relation to the interests protected and limited to the specific types of services provided by the employee during the employee’s last two years of employment; the agreement shall not penalize an employee for defending or challenging the enforceability of the agreement; the agreement shall not contain a choice of law provision that would have the effect of avoiding the requirements of the legislation; the agreement shall not waive the employee’s substantive, procedural or remedial rights provided under the legislation or any other law, act, or regulation; the agreement shall not restrict the employee from providing a service to a customer or client of the employer if the employee does not initiate or solicit the customer or client; and the agreement shall not be unduly burdensome on the employee, injurious to the public or inconsistent with public policy.

In addition, other highlights of the proposed legislation are as follows:  the bill would not be enforceable against certain classes of employees, such as non-exempt employees under the Fair Labor Standards Act, independent contractors, and employees whose service was less than one year;  an employer who seeks to enforce the restrictive covenant agreement would be required to notify the employee in writing within ten days after the employee’s termination of the employer’s intent to enforce the agreement; employers would be required to post a copy of the law in a prominent place in the work area; unless the employee is terminated for misconduct, an employer who seeks enforcement of the agreement would be required to pay the employee 100 percent of the pay to which the employee would have been entitled as well as whatever benefit contributions would be required in order to maintain fringe benefits for the employee; and the proposed legislation allows employees to bring civil action against the employer for violation of the law, including seeking injunctive relief, liquidated damages, compensatory damages and reasonable attorneys’ fees and costs.

If enacted, the legislation would go into effect immediately.  However, the legislation would not apply to agreements in effect prior to the enactment of the legislation.  Nonetheless, it would be prudent for employers to review their restrictive covenant agreements currently in effect and to monitor this legislation; and likewise, it would be prudent for employees to seek legal counseling prior to signing a restrictive covenant agreement.

Lateral Transfer May Constitute Adverse Employment Action For Whistleblower Retaliation Under New Jersey Conscientious Employee Protection Act

In general, to establish a whistleblower retaliation claim under the New Jersey Conscientious Employee Protection Act (“CEPA”), an employee must suffer an “adverse employment action.”  The most typical examples of adverse employment actions are employment terminations or demotions.

In Jeffrey Scozzafava v. Somerset County Prosecutor’s Office (Docket No. A-2228-16T1 May 14, 2018), the Appellate Division took an expansive view of the term “adverse employment action” to include a lateral transfer.  Plaintiff, a detective with the Somerset County Prosecutor’s Office who had extensive experience in the forensic field, alleged that his transfer from the Office’s forensic unit to the Office’s fugitive squad was “in retaliation for whistle-blowing conduct in lodging complaints regarding deficient and improper evidence collection and casework by the forensic unit.”  Significantly, the transfer was a lateral transfer.  Indeed, Plaintiff maintained his position and rank, with full pay and benefits.  Therefore, the trial court dismissed the lawsuit, finding that Plaintiff did not suffer an adverse employment action under CEPA.

The Appellate Division, however, reversed the trial court’s decision and remanded the matter for further proceedings.  Specifically, the Appellate Division found that retaliation under CEPA not only includes “discharge, suspension or demotion but also other adverse employment action taken against an employee in the terms and conditions of employment.”  The Appellate Division further determined that New Jersey courts have interpreted the “terms and conditions of employment” as “those matters which are the essence of the employment relationship,” including “length of the workday; increase or decrease of salaries, hours, and fringe benefits; physical arrangements and facilities; and promotional procedures.”  Accordingly, here, the Appellate Division found that, given Plaintiff’s extensive experience as a forensic detective, the transfer was “objectively demeaning” and would not allow him to continue to develop his expertise in the forensic field.   Therefore, the Appellate Division held that Plaintiff alleged “sufficient facts, when viewed in the proper light, to prove an adverse employment action.”

This decision represents a significant victory for employees given that it further expands whistleblower protection under CEPA.  As such, it important that New Jersey employees understand the expansion of their rights in the workplace under CEPA.

New Jersey Law Against Discrimination May Apply To Out-of-State Telecommuters

In Trevejo v. Legal Cost Control, Inc. (Docket No. A-1377-16T4, April 2, 2018), the New Jersey Appellate Division examined whether an out-of-state telecommuter may be afforded protections under the New Jersey Law Against Discrimination (“NJLAD”).  Plaintiff, an out-of-state resident of Massachusetts, was employed by Legal Cost Control, which is a New Jersey corporation based out of Haddonfield, New Jersey.  Following her employment termination, Plaintiff filed a lawsuit in the Superior Court of New Jersey alleging age discrimination in violation of the NJLAD.  Legal Cost Control moved to dismiss the lawsuit via motion for summary judgment, arguing that Plaintiff was not an “inhabitant” of the State of New Jersey, and therefore, could not pursue a claim under the NJLAD.

Following limited discovery, the trial court granted Legal Cost Control’s motion for summary judgment and dismissed the lawsuit.  However, Plaintiff appealed the decision, and the Appellate Division agreed with Plaintiff.  Specifically, the Appellate Division reversed and remanded the decision to allow the parties to take additional discovery to determine whether Plaintiff is entitled to protections under the NJLAD.  In so doing, the Appellate Division found that the NJLAD may apply to out-of-state residents who are subject to unlawful misconduct in the State of New Jersey.

In rendering its decision, the Appellate Division determined that “[t]he NJLAD is a remedial statute that has been broadly construed to protect not only ‘aggrieved employees but also to protect the public’s strong interest in a discrimination-free workplace.’”  In addition, the Appellate Division found that Legal Cost Control’s reliance on the term “inhabitant” was misplaced given that the NJLAD “explicitly uses the term ‘person’ to identify who is protected from discriminatory and unlawful employment practices and conduct.”  Accordingly, the Appellate Division held that additional discovery should be taken regarding whether the discriminatory conduct took place in New Jersey, including the following: where Plaintiff’s co-employees worked; whether those co-employees worked from home; the nature of the software used by Plaintiff and other employees to conduct business on behalf of the company; the location of the company’s server used to connect Plaintiff to the company’s New Jersey office; the location of the company’s internet service provider; the individual(s) who made the decision to terminate Plaintiff and the basis for the decision; and any other issues relevant to Plaintiff’s contacts with the State of New Jersey and her work for the company.

With today’s ever-increasing technological advances, the definition of workplace seems to be evolving.  Indeed, telecommuting and working from home appear to be more common than ever given the advances in computer technology.  Accordingly, this decision represents a further expansion of the New Jersey Law Against Discrimination given that it offers out-of-state residents potential coverage under New Jersey law.

If you have any questions about this decision or the New Jersey Law Against Discrimination, please contact the Law Office of Frank A. Custode, LLC.

Statewide Paid Sick Leave Mandatory In New Jersey

On May 2, 2018, Governor Phil Murphy signed a bill into law that requires mandatory paid sick leave for employees in the State of New Jersey. The law goes into effect on October 29, 2018 (180 days after the law was signed by Governor Murphy).  The law applies to all private businesses who employ individuals in the State of New Jersey.

Under the law, sick leave begins to accrue on the effective date of the law or the employee’s hiring date, whichever is later.  Employees may accrue one hour of leave for every 30 hours worked.  Employers are not required to permit employees to accrue more than 40 leave hours in a benefit year, which is a 12-month consecutive period during which an employee may accrue and use earned sick leave.  Accrued, unused sick leave must carry-over to the next year (however, an employee cannot accrue and carry-over more than 40 hours in a benefit year), unless the employer offers and the employee chooses to accept compensation for accrued, unused leave at the end of the benefit year.  As an alternative, the employer may choose to “frontload” employees with one full year of 40 hours of paid sick leave on the first day of the benefit year.  If employers choose to “frontload,” they must pay employees compensation for said accrued, unused leave at the end of the benefit year or permit employees to carry over accrued, unused leave to the next benefit year.

Employees may use earned sick leave beginning 120 days after their employment commences for the following:  time needed for diagnosis, care, or treatment of, or recovery from, an employee’s mental or physical illness, injury or other adverse health condition, or for preventive medical care for the employee; time needed for the employee to aid or care for a family member of the employee during diagnosis, care, or treatment of, or recovery from, the family member’s mental or physical illness, injury or other adverse health condition, or during preventive medical care for the family member; absence necessary due to circumstances resulting from the employee, or a family member of the employee, being a victim of domestic or sexual violence, if the leave is to allow the employee to obtain for the employee or the family member: medical attention, services from a designated domestic violence agency or other victim services organization, psychological or other counseling, relocation, or legal services; time during which the employee is not able to work because of a closure of the employee’s workplace, or the school or place of care of a child of the employee, by order of a public official, or because of the issuance by a public health authority; or time needed by the employee to attend a school-related function regarding the employee’s child or required by a school responsible for the child’s education, or to attend a meeting regarding care for the child’s health conditions or disability.

Employers may require seven days of advance notice if the use of the leave is reasonably foreseeable.  Otherwise, employees must give notice as soon as practicable.  Employers must post a notice developed by the New Jersey Department of Labor informing employees of their rights under the law, and must give employees a copy of the notice within 30 days of when the notice is drafted by the New Jersey Department of Labor.  Employers are required to maintain records pertaining to hours worked and sick leave taken for a period of five years under the law.  The law also has stringent anti-retaliation provisions, which protect employees who request or use earned sick leave.

This law has significant ramifications for employers (particularly, small businesses) given the increase in the number of employees who will be eligible for paid sick leave in the State of New Jersey.  Indeed, employers should review their existing paid time off or sick leave policies for compliance with this law and/or develop paid time off or sick leave policies to comply with this law.  In addition, this law is a significant victory for New Jersey employees, who continue to be afforded additional protections in the workplace.

If you have any questions about this law or leaves of absence in the workplace, please contact the Law Office of Frank A. Custode, LLC.

 

New Jersey Legislature Passes Comprehensive Equal Pay Act

On March 27, 2018, the State of New Jersey passed comprehensive legislation, known as the Diane B. Allen Equal Pay Act, that protects all classes of employees recognized under the New Jersey Law Against Discrimination.  The law goes into effect on July 1, 2018.  Specifically, the law makes it an unemployment practice “[f]or an employer to pay any of its employees who is a member of a protected class at a rate of compensation, including benefits, which is less than the rate paid by the employer to employees who are not members of the protected class for substantially similar work, when viewed as a composite of skill, effort and responsibility.”

The Diane B. Allen Equal Pay Act expressly provides for narrow, itemized permissible reasons for offering employees a different rate of compensation.  Specifically, the law states that “[a]n employer may pay a different rate of compensation only if the employer demonstrates that the differential is made pursuant to a seniority system, a merit system, or the employer demonstrates: (1) that the differential is based on one or more bona fide factors other than the characteristics of members of the protected class, such as training, education or experience, or the quantity or quality of production; (2) that the factor or factors are not based on, and do not perpetrate a differential in compensation based on sex or any other characteristic of members of a protected class; (3) that each of the factors is applied reasonably; (4) that one or more of the factors account for the entire wage differential; and (5) that the factors are job-related with respect to the position in question and based on a legitimate business necessity.”  “A factor based on business necessity shall not apply if it is demonstrated that there are alternative business practices that would serve the same business purpose without producing the wage differential.”  The law also expressly provides that “comparisons of wage rates shall be based on wage rates in all of an employer’s operations or facilities.”

Significantly, the law enhances the damages available to prevailing employees under the New Jersey Law Against Discrimination.  In addition to available compensatory damages, punitive damages, and attorneys’ fees and costs under the New Jersey Law Against Discrimination, a prevailing party may be awarded three times the amount of monetary damages (known as treble damages) for unlawful discrimination or retaliation under the Dianne B. Allen Equal Pay Act.

This legislation is a significant victory for employees in the State of New Jersey as they will be afforded additional protection for unlawful differential in compensation.  If you have any questions about this law or the New Jersey Law Against Discrimination, please contact the Law Office of Frank A. Custode, LLC.

Proposed Bill Would Bar Provisions in Employment Contracts That Waive Rights Under the New Jersey Law Against Discrimination

The New Jersey Legislature is considering enacting a bill (S121) that makes any “provision in any employment contract that waives any substantive or procedural right or remedy relating to a claim of discrimination, retaliation, or harassment” against “public policy” and “unenforceable.”  The proposed bill also makes any “provision in any employment contract or agreement which has the purpose or effect of concealing the details relating to a claim of discrimination, retaliation, or harassment” against “public policy” and “unenforceable.”

Under the proposed bill, no right or remedy under the New Jersey Law Against Discrimination “or any other statute or case law” could be prospectively waived.  The bill also prohibits “any retaliatory action, including but not limited to failure to hire, discharge, suspension, demotion, discrimination in the terms, conditions, or privileges of employment, or other adverse action, against a person, on grounds that the person does not enter into an agreement or contract that contains a provision deemed against public policy and unenforceable.”

The proposed bill contains a two-year statute of limitations for plaintiffs/employees to file claims in the Superior Court of New Jersey.  A prevailing plaintiff/employee shall be awarded reasonable attorneys’ fees and costs under the proposed bill.  In addition, a prevailing plaintiff/employee is entitled to all available common law tort remedies as well as those provided under any other statute.  If enacted, this law will have significant potential ramifications for both employers and employees.  This proposed bill is obviously a positive development for employees as they will be afforded additional protections. On the other hand, employers should be monitoring this bill and should update their agreements accordingly if the legislation is enacted.

If you have any questions about this proposed bill, employment agreements, or the New Jersey Law Against Discrimination, please contact the Law Office of Frank A. Custode, LLC.