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When the boss doesn't play fair

The law protects New Jersey workers from various forms of discrimination in the workplace. Perhaps you've heard stories of people whose bosses wrongfully terminated their positions for one reason or another. For instance, more than one woman wound up losing her job just after telling her boss she was pregnant. Others say they were only trying to protect the community at large when they reported safety violations to the appropriate officials, only to later learn their positions had suddenly been made obsolete.

Another issue that often causes workplace contention is gender. Do you always feel like your boss treats you differently simply because you're the opposite gender?  The idea of gender bias in a 21st century work environment may seem a bit ridiculous to some. However, if you're the subject of this type of discrimination, you understand that it's anything but silly. In fact, it can be a very serious matter when it negatively affects your ability to carry out your workplace duties.

Who makes the coffee? Discrimination may be subtle.

Discrimination comes in as many shapes and sizes as people do. This is why the list of groups that have protected status under federal anti-discrimination laws seems to grow longer every few years. Even if you are among those whom federal law already protects, you may be feeling that someone at work is treating you unfairly.

NJ Senate Bill 992-Important Protections for Women in the Workplace

Employment Road Sign with Dramatic Clouds and Sky.The N.J. legislature sent Senate Bill 992 to Governor Christie for adoption.  S. 992 amends the N.J. Law Against Discrimination (LAD) making wage disparities amongst similarly situated employees expressly unlawful.  The Bill imposes treble damages upon any employer found to be in violation and further, expands the statute of limitations to restart with every instance, expanding the two (2) year statute of limitations established by the federal Lily Ledbetter Law.   While the federal Equal Pay Act also provides for these protections, it does not expand the statute of limitations or provide the other protections that S. 992 does.
S. 992 also protects employees from retaliation if they disclose their pay levels to other employees and specifically makes it unlawful to require employees to sign a document shortening the statute of limitations for LAD and equal pay claims or to waive the protections of the Law Against Discrimination as a condition of their employment.
Gov. Christie vetoed S. 992 on May 2, 2016 saying that it was not friendly to businesses and that there was no reason to further legislate this issue. NJ.com
It has been 53 years since the passage of the Equal Pay Act and White women are still only making $0.70-$0.80 for every dollar earned by a White male.  African American and Hispanic women make even less.  There is also a clear pay disparity between wages earned by White men and Hispanic or African American men.  See article in NJ.com.  The Bill sponsored by Sen. Loretta Weinberg (D-Bergen) provided the much needed teeth to this law to "encourage" companies to do the right thing and pay their women and minority employees fairly.
S. 992 is finally THE LAW that will make businesses do the right thing where the current law and society has failed to convince them of the virtues of equal pay for all of their workers.
Gov. Christie's veto can be overturned by a vote of 2/3rds of the legislature.
So, for yourself, and your mothers, sisters and daughters, its time to speak up!
Contact your legislator to encourage them to override this veto.


Human resourcesThe EEOC is amending its EEO-1 form (the Employer Information Report) to include questions about pay ranges and hours worked by employees.  This data will reveal patterns or trends in pay disparities.   The current EEO-1 Form provides information on workforce profiles such as race, gender, ethnicity and job category but doesn't seek information on pay ranges or hours worked.  The new EEO-1 Form will go into effect in September 2017. EEOC Press Release (1/29/2016)
This tracking mechanism together with the proposed changes in the N.J. Law Against Discrimination (LAD) are represent giant strides towards eliminating gender pay disparities in the workplace.  The proposed changes to the LAD as vetoed by Gov. Christie are slowly being made the law by the New Jersey Supreme Court.
On June 15, 2016, the NJ Supreme Court ruled that it is unlawful for an employer to require an employee to agree to a shortened statute of limitations period in an employment agreement.  Rodriguez v. Raymours Furniture.  This was one of the changes proposed in Senate Bill 992 vetoed by Gov. Christie.  S. 992 also protects employees from retaliation if they disclose their pay levels to other employees and specifically makes it unlawful to require employees to sign a document shortening the statute of limitations for LAD and equal pay claims or to waive the protections of the Law Against Discrimination as a condition of their employment.  Hopefully the NJ Supreme Court will rule in accordance with these proposed changes establishing precedent where the Governor wouldn't make new law.
Irrespective of the mechanism, the current federal and NJ trend is to pay special attention to the gender pay disparities.  EEOC Chair Jenny R. Yang said "More than 50 years after pay discrimination became illegal it remains a persistent problem for too many Americans.  Collecting data is a significant step forward in addressing discriminatory pay practices.  This information will assist employers in evaluating their pay practices to prevent pay discrimination and strengthen enforcement of our federal anti-discrimination laws."
It is imperative that NJ businesses begin to analyze their own statistics now to avoid enforcement penalties down the line.

Lessons Learned From Carlson v. Ailes

dealing with the office bullyOn July 6, 2016, Gretchen Carlson filed suit against Roger Ailes for severe and pervasive sexual harassment suffered while working at Fox News.  Roger Ailes resigned in July 2016, and Carlson's case settled in September 2016 with Fox News' parent company paying her $20,000,000.
The Complaint provides the sordid details of what Carlson says she suffered while working for Ailes.  Since the case settled before any real litigation took place, we can only assume that Ailes and his attorney would have cleverly denied that any of these events took place and that there were "legitimate business reasons" for the changes in Carlson's schedule, lack of prime job assignments and other retaliatory actions alleged by her.
Carlson got lucky because the price tag to Fox News in settling was lower than the cost of litigating plus the value of the judgment had Carlson won at trial.
The "he said, she said" type of facts in this Complaint are fairly routine in employment cases, especially those alleging sexual harassment. Very rarely does the offensive harassment take place in front of witnesses. The difference is that the cases don't generally settle this fast or for such high numbers but the high profile nature of the litigants certainly had something to do with it.  A "regular Jane/Joe" employment litigant endures day long depositions, discovery requests, and potentially, a stressful trial.
So, what's the take away?
1.  Most employment cases are "he said, she said" and depend on circumstantial evidence.  There is almost never a smoking gun. So, if something has happened, don't let that scare you away from standing up for yourself.  Employment cases in general are difficult and your's isn't unique in that respect.  Speak with an attorney to find out what your options are.
2.   Settlements before litigation are always about a cost benefit analysis.  Whether to settle or not will always a business decision of balancing the risk against the payout.   But don't forget that most cases settle. Don't let this scare you away either.  If you feel strongly about being mistreated, speak to an attorney to make an informed decision.


Ayesha Hamilton Employment LawyerAs you start a new job, be alert to non-compete restrictions that your new employer may wish to impose upon you.  Increasingly, employers seem to require their new employees to sign Non-Compete Agreements restraining where they may work if they leave the job.  The idea is to incentivize employees to stay in this job because leaving may mean that they are not allowed to work in their preferred industry for a period of time.  Depending on the type of employer and your specific job, you may be restrained for working in your industry anywhere in the United States for a period of one or two years.  While our courts do not favor non-competes, they will enforce them where they are reasonable in the time period and geography of the restraints.As you think about leaving a job, consider all of the different documents that you have signed when you started the job or during the course of your employment.  You may not realize that "hidden" non-compete's exist in a variety of contexts.  You want to make sure that you are in compliance but also able to earn a living in your chosen profession.  There are a variety of factors that will go into analyzing whether a court will enforce the non-compete as a whole or a particular provision within it.  Examining the circumstances of your employment together with those surrounding the execution of the actual restrictive covenant may reveal unenforceable provisions that allow you to move on to your next job without restriction.

Employer's perception of employee speech matters.

Ayesha Hamilton Employment LawyerOn April 26, 2016, the Supreme Court of the United States held that the employer's perception that the employee had engaged in first amendment protected speech was relevant to determining whether the employer was motivated by that speech in demoting the employee.Click here for the full article in Law 360.This decision is extremely important as it brings first amendment rights in the employment context into line with the "perception" analysis routinely recognized in other employment cases.  For instance, in LGBT and ADA cases, the employer's perception of the employee's medical condition or sexual orientation is relevant to the analysis of whether the employer was motivated by that perception, even if the perception was incorrect.Similarly, in this case, where Heffernan did not actually engage in the protected speech perceived by the employer, the employer believed that he had and demoted him based upon that perception.  The employer sought to dismiss the case because they claimed that no protected speech had actually taken place and hence, the employee did not have a cause of action to pursue.  SCOTUS created the cause of action based upon the employer's perception of the speech having taken place, remanding the case for trial.

The UBER Dilemma: An insurance perspective.

Does the taxi lobby's  argument against TNCs hold water?Businessman standing indoors looking at cellular phoneThe (not so new) business model: using a smartphone app to connect drivers with riders. New York has effectively legalized it and there is currently a bill pending before the Pennsylvania Senate to give TNC (transportation network companies) like Uber and Lyft legal authority to operate within the state, establishing a regulatory framework within which these TNCs may operate.New Jersey currently has a bill pending before its legislature that seeks to substantially limit TNC’s ability to serve its residents, potentially driving TNC's out of the state and leaving the passengers to pay the higher prices, chilling competition and effectively creating a monopoly.The argument most used by traditional taxi companies against TNCs has been that they don’t provide sufficient or appropriate insurance coverage for the driver and the passenger. That argument has been effectively neutralized by both the TNCs as well as insurance companies as follows: UBER and Lyft self insure the driver and the vehicle for $1 Million while the passenger is in the vehicle, thereby protecting the actual ride related liability. Traditional taxi companies generally provide on average $125,000 in coverage for the ride. Uber will also provide insurance coverage in the uninsured/underinsured situation where the other driver involved in the crash is not appropriately insured. Uber and Lyft’s focus is to protect the passenger and have handsomely insured that portion of the ride when the customer may be at risk.Insurance companies, realizing that there is a gap in coverage for when the TNC driver has logged on and has been connected with a passenger but the rider isn’t in the vehicle yet, are now selling coverage to fill that gap. The driver is free to purchase this coverage that specifically protects him/her and the vehicle.So, the bottom line is that the traditional taxi companies’ insurance arguments simply don’t hold water.   Perhaps it is time to accept that the TNC business model is here to stay and will provide a competitive environment in a market that has been dominated by the traditional model. Arguing that TNC’s be regulated out of existence does not serve the free market economy or the passenger, who must be provided the free choice to select a TNC if they wish.   After all, is that the bedrock of our economy? Its time to take a look at the actual motives behind this resistance to change and take steps to preserve freedom of choice in our economy.See the following article for comments from both sides of the debate.http://www.northjersey.com/news/business/uber-holds-secaucus-rally-to-protest-proposed-rules-1.1320315

Business Divorce: Planning the wedding and divorce at the same time!

noncompetePlanning For A Graceful Exit.No one wants to start a marriage planning for divorce. However, when you own a business with one or more individuals, you have to do exactly that; you need to plan for the end. But planning for failure doesn’t mean that you will fail. It just means that you will have a graceful exit should the venture or the relationship take an unexpected and undesirable direction.So, what should you do to protect yourself as you start a new venture?
  1. PLAN: Make sure you are properly incorporated at the outset, using the proper business form to suit your needs. You need to make sure that you are protecting your personal assets from the claims of others, including your partners.
  1. PROTECT: Make sure you have an operating agreement or partnership agreement. This is critical to the successful operation of your business. This document sets the rules under which you will operate the company. It outlines who is responsible for what general jobs, voting rights, ownership interests etc. Most importantly, this agreement will outline the procedure to be followed when an owner wants to exit the business. Having a predetermined guideline on the procedure for notifying the business owners that you want to leave, determining the value of your interest, establishing whether an owner or the company can buy your shares, whether a third party is allowed to buy shares etc. are all important considerations which must be resolved at the outset.
  1. PRESERVE: Remember that while you and your partners are friends, maybe even family, there may come a time when the relationship isn’t so sunny and the trust has vanished. You are planning for this time and must assume that no one will acknowledge or remember the terms of a handshake agreement when you are pitted against each other in an adversarial relationship. Any important and critical parameter of this relationship must be in writing.
Plan, Protect, Preserve. This must be your mantra as you start any new venture or as you evaluate any existing ventures. These are a few simple steps that will protect you and your business interest in the event of a business divorce.

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