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Union, New Jersey, Legal Blog

No protection for LGBT employees, says DOJ brief

While New Jersey law prohibits discrimination against employees on the basis of sexual orientation, this protection may not be available in all states. On July 26, the Department of Justice filed an amicus brief in a discrimination case in New York arguing that the prohibition against sex discrimination in Title VII of the Civil Rights Act does not include a prohibition against discrimination on the basis of sexual orientation.

The case involves a sky diving instructor who says he was fired because of his sexual orientation. The man has since died in an accident and been replaced in the lawsuit by his executors. The District Court said that discrimination on the basis of sexual orientation was not sex discrimination, and the executors are now appealing that decision in the U.S. Court of Appeals for the 2nd Circuit.

How tips are treated under the Fair Labor Standards Act

When workers in New Jersey and around the country are paid less than the established federal minimum wage or denied overtime pay despite working for more than 40 hours during a workweek, they may seek redress under the Fair Labor Standards Act. While these claims may be supported by documentation such as time sheets and pay stubs when employees are paid a fixed rate, matters can become contentious when workers earn some of their income in the form of tips.

Restaurant employees sometimes perform two or more tasks. When some of their duties generate tips and others do not, employers are required to pay them at least the federal minimum wage for all non-tipped work. However, the 1938 law makes an exception for what is known as side work. This exception allows employers to claim a tip credit for tip-related work such as clearing tables and setting up workstations, but the FLSA side work rule is subject to two important limitations.

Wage discrimination is an issue for many groups

Wage discrimination is not only an issue for women. In New Jersey and throughout the country, it affects other groups including men, members of the LGBTQ community, minorities and older people.

Over the past four fiscal years, women made up roughly 85 percent of filed wage claims based on gender, with men comprising most of the rest. Gender and race were the most common reasons for work discrimination claims regarding wage, and claims of discrimination based on age, national origin and disability followed, according to EEOC data. The least common reasons for claims were religion and discrimination based on genetic information.

Software company ordered to pay $3.4 million in unpaid overtime

New Jersey employees classified as exempt from minimum wage and overtime by their companies might be interested to learn that a major insurance software startup will pay $3.4 million in unpaid overtime to greater than 700 of their workers. The agreement to repay employees came after the Department of Labor found that some of the employees were wrongly classified as exempt.

The company, Zenefits, had been paying their employees a flat salary, regardless of the amount of overtime and training time they were receiving. Essentially, this could have meant that employees were earning less than minimum wage due to the amount of time they were at work. According to the VP of Communications for Zenefits, the company fully cooperated with the DOL, resulting in no fines, damages or penalties. Further, the company agreed to allow the DOL to track its practices to ensure proper payments under the Fair Labor Standards Act.

Is age discrimination hurting your career?

You've been dedicated to your career path for years, even decades. You have the education and the practical experience to make you an expert in your field. You are years from being ready or willing to retire, but you also feel like you've hit a brick wall in your career. Could you be experiencing age discrimination? You may hesitate to assume discrimination, but age discrimination is very common in a number of industries. Even if your boss or manager is as old or older than you are, he or she could still have unhealthy ideas about the contributions of experienced and older employees.

If you aren't currently working due to a layoff or similar issue, your age could prevent you from securing a good position. Some employers may seem enthusiastic about your work history and experience but then balk about hiring you after your interview. The reasoning may vary, but it's common for age to impact a hiring decision. Your would-be manager might worry about when you'll retire. There could also be concerns about whether you can keep up with current advancements in your field. In some cases, employers may incorrectly assume that older workers make more mistakes.

Constructive discharge and workplace discrimination

When dealing with a case of employment discrimination in New Jersey, one potential factor to keep in mind is constructive discharge. Constructive discharge generally refers to employees who have resigned from their job in circumstances in which they had no other choice but to leave their employment.

In 2004, the U.S. Supreme Court noted that constructive discharge takes place when an employee decides to resign due to working conditions that cannot be endured. It equated this situation to that of a formal dismissal . There have been a number of claims for constructive discharge recognized within an employment discrimination framework, including cases concerning discrimination based on religion, race, sex, national origin and pregnancy.

Court rules arbitration not necessary in dispute

Three certified nursing assistants filed a claim against their employer dealing with how overtime pay was calculated and whether they were paid for their meal breaks. Their employer said that the employees had to go through arbitration because the dispute was related to a collective bargaining agreement. The U.S. District Court for the District of New Jersey rejected the arguments of the employer, and the employer appealed to the Third Circuit Court of Appeals. The higher court affirmed the decision of the lower court.

The lawsuit argued that the employer violated both the Fair Labor Standards Act and state wage laws. The company did so by failing to include wage differentials in base pay when calculating overtime and in excluding meal breaks. In the latter instance, nursing assistants rarely got meal breaks at night due to understaffing.

Survey highlights discrimination towards female physicians

Health care workers in New Jersey must cope with demanding, high-stakes environments, and female physicians often must operate in workplaces hostile to their needs, especially if they have children. When university researchers reached out to the online Physicians Moms Group, they received responses from nearly 6,000 women in a variety of health care specialties and workplaces.

The levels of workplace discrimination expressed by the respondents surprised even those people who were aware of the problem. More than three-quarters of the women reported discrimination on the job, and 66 percent of them said the discrimination was gender based. Negative attitudes and treatment toward mothers who took maternity leave and breastfed their children affected 35 percent of the women.

Senator alleges whistleblower retaliation

Some New Jersey employees may be aware that whistleblowers in the workplace are supposed to be protected against retaliation. On April 27, Sen. Chuck Grassley said that there had been coverups in investigations into retaliation against whistleblowers in the Defense Department. Grassley focused his criticisms on the Office of Inspector General.

The senator was speaking in relation to a case involving Rear Admiral Brian Losey, who had been found guilty of retaliating against whistleblowers. Following the revelation of the charges, Losey was also forced to retire. Nevertheless, Grassley said there had been an effort to cover for Losey and that it had not been an isolated incident. He claimed there were at least five additional similar cases if not more.

Ongoing training helps to address workplace discrimination

Discrimination can emerge in many ways at workplaces throughout New Jersey. When employees experience ongoing negative treatment, such as exclusion from meetings and disparaging comments, it can impact their morale and motivation and reduce overall productivity at the company. A commissioner from the Equal Employment Opportunity Commission advises employers to provide training that makes middle managers and supervisors accountable for workplace harassment.

In addition to recognizing behavior among workers based on biases, middle managers should receive training about how to respond appropriately. Training sessions to remind supervisors of the issue should occur regularly, and management should inform all employees of how to report problems.

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