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NJ Hostile Work Environment Harassment Liability For Supervisors Is Clarified

On February 11, 2015, in Aguas v. State of New Jersey, the New Jersey Supreme Court issued two rulings that will have a significant impact on hostile work environment harassment cases. First, with regard to claims alleging vicarious liability for supervisory harassment under the LAD, the Court adopted the governing  test set forth by the United States Supreme Court in Burlington v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998).

Specifically, the Court held that the employer in a hostile work environment sexual harassment case may assert as an affirmative defense to vicarious liability that it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior,” and “the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise,” provided that the employer has not taken an adverse tangible employment action against the plaintiff employee.

Second, the Court clarified the definition of “supervisor” for purposes of hostile work environment claims since there was tension between the expansive definition of supervisor promulgated by the Equal Employment Opportunity Commission and the more restrictive definition set forth in Vance v. Ball State University, 133 S. Ct. 2434 (2013).

Specifically, the Court adopted the more expansive definition utilized by the EEOC, finding that an alleged harassing employee is the complainant’s supervisor “if that employee had the authority to take or recommend tangible employment actions affecting the complaining employee, or to direct the complainant’s day-to-day activities in the workplace.”

While these are significant rulings, note that an employer may only utilize the vicarious liability affirmative defense when no adverse employment action is taken against the employee (i.e., there is no employment termination, demotion, etc.) Therefore, the holding applies to limited factual circumstances.  Nonetheless, as an employee, it is important that you utilize any complaint mechanisms established by your employer if you believe you are subject to hostile work environment harassment. Failure to do so may jeopardize the merits of your case depending on the facts.

Are You An Independent Contractor or Employee In New Jersey?

Are you an independent contractor or an employee in New Jersey?  In Hargrove v. Sleepy’s, LLC, the New Jersey Supreme Court held that the “ABC” test derived from the New Jersey Unemployment Compensation Act governs whether a plaintiff is an employee or an independent contractor for purposes of wage and hour claims.

Under the “ABC” test, an individual in New Jersey is an employee as opposed to an independent contractor unless the employer demonstrates that: (1) the individual has been and will continue to be free from control or direction over the performance of such service, both under contract and in fact; (2) such services are either outside the usual course of the business or performed outside of all of the places of business of the enterprise for which such services are performed; and (3) the individual is customarily engaged in an independently established trade, occupation, profession or business.

Given this strict criteria, the Court’s holding should lead to increased findings in New Jersey that individuals are employees as opposed to independent contractors.

What is the “Ban the Box Law”?

Generally speaking, under New Jersey’s “Opportunity To Compete Act” (also known as the “ban the box law”), an employer cannot inquire about an employee’s criminal history during an initial interview with an applicant. The Act, which went into effect on March 1, 2015, applies to employers with 15 or more employees over 20 calendar weeks.

Specifically, the Act prohibits employers from making any oral or written inquiries into the applicant’s criminal history background during the “initial employment application process.” In other words, an employer cannot ask an applicant about their criminal history until after an initial interview takes place.

However, an employer may make inquiries about an applicant’s criminal history if the applicant voluntarily discloses his or her criminal history. Certain types of employment are not covered under the Act, such as employment in law enforcement, corrections, emergency management, the judiciary and homeland security.

Please note that the Act does not create a civil cause of action if there is a violation. Therefore, employees cannot sue for violations of the Act. However, the New Jersey Department of Labor may impose penalties on an employer for violations of the Act.