Employment Law FAQ

Frequently Asked Questions About Employment Law

Can I Recover Punitive Damages From My Employer?

The New Jersey Supreme Court recently confirmed that the plaintiff may only recover punitive damages from his or her employer on two grounds: 1) Upper management’s actual participation or willful indifference with respect to illegal discrimination; 2) the subject of the conduct must be “especially egregious misconduct.”

The Supreme Court dealt with this issue in a CEPA/LAD case of Longo v. Pleasure Productions, Inc., which was issued on July 17, 2013.

Can I Hold My Employer Or Supervisor Responsible For Not Preventing Harassment?

The U.S. Supreme Court in a recent split decision in the matter of Vance v. Ball State University authored by Justice Alito confirmed that in a discrimination case, the company/employer can be held liable if the claimant proves their employer did not prevent the harassment. Evidence can show the employer failed to monitor the workplace, respond to complaints or discourage the complaints.

The foregoing was written in the context that the harassing party was not a supervisor, but rather just a co-employee. The case also offered the definition of a supervisor as one who “directs” the day-to-day activities of the one claiming to be harassed. This Supreme Court case was brought under Title 7, the federal statute that in many ways is mirrored by the New Jersey Law Against Discrimination.

In A Discrimination Case, Will I Face Retaliation For Disclosing Job-Related Details?

State law makes it a violation under the New Jersey Law Against Discrimination for any company or employer to retaliate against a worker who discloses information such as job titles, rates of compensation for other employees, occupational duties, etc. if such information is related to legal action for discrimination.

The law specifically focuses on issues such as discrimination and does not protect employees who are simply attempting to find out what other individuals in the company are making.

When Does My Employer Owe Me Overtime Pay?

The Fair Labor Standards Act (FLSA) and the New Jersey Wages and Hours Law govern wage requirements in the state. The FLSA provides that covered, nonexempt employees must receive overtime premium pay for any time work that exceeds 40 hours in a week at a rate of one and one-half times the worker’s regular rate. Nutley Policemen’s Benevolent Ass’n Local #33 v. Township of Nutley, 419 N.J. Super. 160, 166 (April 1, 2011); 29 U.S.C.S. §207(a).

Several cases enforce that if an employer contends that an employee is exempt from the FLSA and thus not entitled to overtime, the employer must affirmatively prove that the employee comes within the scope of an overtime exemption.

What Is The Family And Medical Leave Act?

Under the Family and Medical Leave Act (FMLA), an eligible employee is entitled to a leave of absence for up to 12 weeks in order to provide care made necessary by reason of the serious health condition of a child. N.J.S.A. 34:11b-3(i).

A “serious health condition” includes any injury, illness, impairment or physical or mental condition requiring either (1) in-patient care in a hospital, hospice or residential medical care facility; or (2) continuing medical treatment or continuing medical supervision by a health care provider. N.J.S.A. 34:11b-3(l). The New Jersey Division on Civil Rights has clarified that the term “continuing medical treatment or continuing supervision by a health care provider” includes “any period of incapacity for pregnancy or prenatal care.” N.J.A.C. 13:14-1.2.

Can My Potential Employer Consider My Criminal Background When I Apply?

The answer depends on the size of the business. On August 11, 2014, New Jersey signed into law “ban the box” legislation, known as the “Opportunity to Compete Act.” The Act became effective on March 1, 2015 and applies to employers with 15 or more employees and prohibits requests for criminal history on initial employment applications. The Act is designed to “remove obstacles to employment for people with criminal records,” provide “economic and social opportunities to a large group of people living in New Jersey,” and increase “the productivity, health and safety of New Jersey communities.”

The intent and purpose of the Act are to improve “the economic viability, health and security of New Jersey communities and to assist people with criminal records to reintegrate into the community, become productive members of the workforce, and to provide for their families and themselves.” 34:6B-12(2)(a-j).

Is Pregnancy Discrimination Legal?

No. In the case of Young v. UPS, the Supreme Court sided with a pregnant woman in an employment discrimination lawsuit. A pregnant woman who worked as a part-time driver for UPS was told by her doctor during her pregnancy that she should not lift more than 20 pounds during her first 20 weeks of pregnancy or more than 10 pounds thereafter. Her responsibilities with UPS included pickup and delivery of packages that sometimes included parcels weighing up to 70 pounds. The woman asked for an accommodation from UPS, which refused to provide one. Eventually, the woman lost her employee medical coverage and sued UPS for unlawfully refusing to accommodate her pregnancy-related job limitation.

Although UPS did not believe that the Pregnancy Discrimination Act required it to provide an accommodation to the pregnant woman, the court held that the plaintiff provided sufficient evidence that UPS’s policies imposed a significant burden on pregnant workers. In failing to accommodate pregnant employees with lifting restrictions and the jury found UPS’s reasons for failing to accommodate pregnant employees “an inference of intentional discrimination.” Young v. UPS, 575 U.S. (2015).

Can My Employer Discriminate Against Me If I Gain Weight?

In the case of Schiavo, et al. vs. Borgata Casino Hotel & Spa, the appellate court recently handed down an opinion about the “Borgata Babes,” female employees of the Borgata Casino Hotel who were compelled to maintain a certain appearance.

These individuals claimed that making them wear certain scantily clad outfits and maintaining a designated weight – in proportion to the women’s height – resulted in sexual discrimination, even though they all signed a written agreement consenting to do so. The court held that the dress and weight standards in themselves did not result in illegal discrimination, but that a number of these women who recently gave birth and suffered weight gains resulting from the pregnancy might have viable claims under the Law Against Discrimination.

Pregnancy and subsequent weight gain are unique to women, and for their employer to take any adverse job action against them, as a result, could be deemed harassment based on the women’s gender. The lawsuit against the Borgata on those grounds was allowed to continue.

Contact Us To Continue The Conversation

At Robert A. Scirocco and Associates Counselors at Law, our attorneys have in-depth employment law and discrimination experience. When we answer your questions and craft a strategy to resolve your conflict, we draw from decades of experience. Call 973-691-1188 today to schedule a consultation. You may also reach out to us online.