New Layout - Temporary

How to Handle #MeToo Complaints in the Workplace

jmark@newjerseyattorneys.com (Jamison Mark) — Wed, 23 Nov 2022 22:25:36 GMT

The #MeToo movement has helped bring workplace sexual harassment into the spotlight. As more and more employees speak up about their concerns, complaints, and personal experiences, employers strive to respond to their individual issues and develop protocols for handling these situations. One excellent resource for employers and employees working to establish and implement response systems is the U.S. Equal Employment Opportunity Commission (EEOC).

EEOC Guidance and Resources

The EEOC publishes and compiles many guides that help employers craft effective anti-harassment policies and provide concrete suggestions for the employees charged with implementing and enforcing those policies. For example, it has issued specific guidance in the form of suggested interview questions to help employers conduct effective investigations.[1]

One helpful EEOC publication is titled “Promising Practices for Preventing Harassment.” These suggestions can help companies structure a policy that helps prevent harassment and establish an effective system for reporting and responding to harassment if it occurs. Although the guidance is not legally binding, it outlines what the EEOC considers best practices and serves as insight into what the agency will be looking for when it investigates harassment claims going forward. It sets forth four basic principles of a successful, legally compliant workplace anti-harassment policy:

1. Senior leadership must head the charge.

A successful harassment prevention strategy must begin with a real, demonstrated, public commitment from senior leadership to create and maintain a culture where harassment is not tolerated and take actions (including allocation of resources and disciplinary consequences) to accomplish that goal.

2. Develop a simple and straightforward policy.

A comprehensive, clear, easy-to-use, well-publicized harassment policy is key to success. Among other things, the policy should set out examples of unacceptable behavior, explain how to make a report, and emphasize that reporting should be plain language rather than flowery legal jargon.

3. Refine your complaint system.

Establish a simple, effective harassment complaint system that identifies and properly equips employees who are responsible for receiving, investigating, and resolving complaints. Make sure the process swiftly responds to complaints and documents every step of the investigation and resolution.

4. Encourage live training.

Regular, interactive harassment training—especially for senior leaders and management—is essential to a successful harassment prevention strategy.

Evolving Responses and Recommendations

Last year, the U.S. Equal Employment Opportunity Commission published a 75-page document entitled “PROPOSED Enforcement Guidance on Unlawful Harassment” and solicited public input and commentary. As a result of the comments it received, the EEOC revised the guidance; it is currently awaiting committee approval and finalization. The proposed guidance makes clear that the EEOC puts an affirmative duty on employers to respond to conduct that would not, in itself, constitute actionable in order to prevent it from escalating into illegal harassment.

The proposed guidance also incorporates and expands the “promising practices” included in previous guidance, outlining five core principles that the EEOC states have generally proven effective in preventing and addressing harassment:

Committed and engaged leadership
Consistent and demonstrated accountability
Strong and comprehensive harassment policies
Trusted and accessible complaint procedures
Regular, interactive training tailored to the audience and organization.

In June 2018, the committee’s Select Task Force on the Study of Harassment in the Workplace heard testimony from expert witnesses on "Transforming #MeToo Into Harassment-Free Workplaces" at public meetings. This task force previously released a report based on investigations in 2015 and 2016 that issued recommendations regarding leadership, accountability, policies and procedures, training, and developing a sense of collective responsibility for companies to combat harassment in the workplace. Following that report, the EEOC developed a preventive training program called Respectful Workplaces, which has been used in over 200 training sessions for more than 5,200 employees and supervisors in 18 states. Since the report was released in June 2016, the EEOC has also conducted about 2,700 outreach events related to harassment for approximately 300,000 individuals. These in-person training courses can be a valuable, affordable, easily implemented part of a comprehensive, effective workplace anti-harassment program.

Need to Develop an Anti-Harassment Program? Contact an Employment Attorney.

New Jersey and federal sexual harassment laws prohibit behavior that a reasonable person would find intimidating or abusive and hold companies responsible for some employee actions. If you are a business owner or manager, talk to an experienced New Jersey employment attorney today to find out how to develop and implement a fully resourced complaint system and anti-harassment policy to protect your employees and your organization. From preparing handbooks and policies to organizing training and a complaint response system, the lawyers at the Mark Law Firm can help you develop an anti-harassment program that works for you. Contact us today to make an appointment at any of our convenient locations.

[1] EEOC Guidance on Vicarious Liability Employer Liability For Unlawful Harassment by Supervisors, June 18, 1999.

What Qualifies as a Hostile Work Environment in New Jersey?

SampleHubSpotUser@hubspot.com (Sample HubSpot User) — Wed, 23 Nov 2022 20:13:43 GMT

You hate your boss, your co-workers, and your clients. The turnover rate is at an all-time high, and your office's productivity is dismal, despite mandatory overtime. You've been disciplined repeatedly for minor mistakes and things beyond your control. Do you have a hostile work environment?

Probably not. The term "hostile work environment" doesn't mean the same in an employment law case as it does in ordinary descriptive language. This short article will set out the criteria for what the phrase means under New Jersey law, how to prove a claim involving a hostile work environment, and what types of compensation a successful claimant may recover.

Hostile Work Environment Under NJ Law

New Jersey employers must provide safe working conditions for their employees. This includes more than just ensuring the physical safety of the workplace. The New Jersey Law Against Discrimination (NJLAD) requires that employers protect workers from behavior that a reasonable person would find intimidating or abusive.

To violate the NJLAD, the intimidating or abusive behavior must be related to or based on a characteristic protected by the statute. These characteristics include:

Race/ethnicity
National origin
Sex/gender identity or expression
Sexual orientation
Pregnancy and breastfeeding
Religion (or absence of religion)
Disability or perceived disability
Familial/relationship status (including marital status, domestic partnership, or civil union status)
Military service (both past service and current obligations such as reserve duty, deployments, and emergency assignments)
Disability or atypical hereditary cellular or blood trait of any individual (or refusal to submit to genetic testing or provide genetic information)
Age (for everyone over the age of 18)

Harassment or abuse related to a protected characteristic is also illegal under federal statutes like Title VII of the Civil Rights Act, The Age Discrimination in Employment Act, and The Americans with Disabilities Act. While the NJLAD applies to nearly all New Jersey employers, Title VII and the ADA only apply to employers that have 15 or more employees, and the ADEA applies to employers with 20 or more employees.

Can I Sue My Employer for My Hostile Work Environment?

A company can be directly liable for the improper conduct of a supervisor or manager towards the workers they supervise. In some situations, an employer might also be liable for harassing conduct between non-supervisory co-workers or from clients.

An employer is obligated under the law to conduct a prompt, thorough, and fair investigation into an employee's claims of unlawful harassment or discrimination – and then to take meaningful action to assure it will not happen again. If your employer knows or should know of the harassing or abusive conduct but has taken no action to respond or prevent it from continuing, you may have a legal claim.

What Is the Legal Standard for a Hostile Work Environment?

To bring a hostile work environment claim under to the New Jersey Law Against Discrimination (NJLAD), a claimant must prove:

The complained-of conduct would not have occurred but for the employee's protected characteristic or membership in one of the law's protected classes.
The conduct was severe or pervasive enough that it would make a reasonable person in that protected group believe that it altered the conditions of employment, making the working environment abusive.[1]

The exact nature of what kind of conduct creates an “abusive working environment” is unfortunately still not well-defined by statute or case law. As societal expectations change, so does the standard for what constitutes illegal conduct.

New Jersey’s Supreme Court has “acknowledge[d] that the hostile work environment claim is still evolving. Conduct considered normal and non-discriminatory twenty years ago may well be considered discriminatory today.”[2]

The standard that the jury will be instructed to apply is that of a reasonable, similarly situated New Jersey employee as the person making the claim. Would such a person reasonably believe that the complained-of conduct was severe and pervasive enough to make the workplace abusive?

Examples of Hostile Work Environments

Usually, a hostile work environment is characterized by multiple acts of harassment, degradation, or threats, often perpetrated by more than one person. Sometimes, however, a hostile work environment claim can be based on just one extremely severe action. For example, an employee may have such a claim if their manager makes a credible threat to kill them or their family because of their national origin.

An employee can make a successful claim for a hostile work environment even if they are not the target of the abuse or threats. For example, another employee of the same national origin who overheard the manager's death threats may be able to convince a jury that they felt terrorized, even if the target employee did not.

Take Action Against Hostile Work Environments

If you're experiencing a work environment that promotes or allows discrimination, harassment, bullying, or abuse, don't stay quiet. Speaking out on behalf of yourself and your coworkers is the only way to protect your rights and prevent further harm. Taking action helps change the system and promote a safe working environment for everyone.

An experienced employment attorney can help you evaluate how you may be able to take action under state and federal laws. Contact the lawyers at The Mark Law Firm today to make an appointment at any of our convenient locations.

[1] Lehmann v. Toys R'Us, Inc., 626 A. 2d 445 (NJ 1993).

[2] Id.

New Jersey Law Against Discrimination Can Overturn Mandatory Arbitration Clauses

SampleHubSpotUser@hubspot.com (Sample HubSpot User) — Wed, 23 Nov 2022 20:12:59 GMT

New Jersey’s Law Against Discrimination (NJLAD) protects employees against discrimination and harassment based on protected characteristics. Included under this provision are many specific protections against sexual harassment. The law is updated regularly to address new issues. An example of this is the addition of Section 12.7.

Section 12.7 of the NJLAD took effect on March 18, 2019. It states,

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.

This provision targets so-called "mandatory arbitration agreements."

What Is a Mandatory Arbitration Agreement?

Employers frequently require employees to sign mandatory arbitration agreements as a condition of beginning or continuing their employment. Usually, these agreements are contained in onboarding and routine HR documents, and employees frequently agree to them without reading or understanding their provisions.

Mandatory arbitration agreements provide that arbitration is the only way an employee can recover for any disputes or claims they may have against the employer. Employees give up their rights to pursue claims in court via lawsuits or file claims with a government agency such as the EEOC.

What Is Arbitration?

Arbitration is an out-of-court alternate dispute resolution procedure. It uses a private individual or professional arbitration service to resolve conflicts. It is less formal, cheaper, and faster than pursuing a lawsuit or complaint with a government agency, so claims are resolved more quickly. However, arbitration limits the type and amount of damages that a claimant can recover, even if there is significant damage or harm. It prevents workers from joining together in class action lawsuits, and often, non-disclosure and confidentiality requirements limit what an employee can disclose about their claims to coworkers or outside parties.

What's Changed in the Law?

Federal and State Law Were in Conflict

Until recently, the Federal Arbitration Act (FAA) supported an employer's right to effectively force their employees to arbitrate all employment disputes, including those related to sexual harassment. This law directly conflicted with Section 12.7 of the NJLAD. According to the legal doctrine of preemption, when a federal law directly conflicts with a state law, the federal law "wins."

Federal Law Now Partially Supports NJ Law

A federal law that took effect on March 3, 2022, however, changed certain provisions of the FAA. The “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021” (H.R. 4445)[1] prohibits employers from forcing employees to agree to mandatory arbitration of any claims of sexual assault or harassment in the workplace.

Note: The FAA still applies to other types of disputes; employers can still require workers to use arbitration to resolve conflicts over wage and hour claims, for example.

The change to this part of the FAA means that it no longer directly conflicts with Section 12.7 of the NJLAD. In the first New Jersey case to consider the issue, an Essex County Superior Court judge ruled earlier this year that the FAA no longer preempts Section 12.7 of the NJLAD with respect to workplace sexual harassment and sexual assault suits.[2]

There is some debate and confusion regarding cases based on harassment or other actions that occurred between March 2019 and March 2022. However, since the FAA no longer preempts the NJLAD, the judge ruled that New Jersey courts should be able to decide all sexual harassment or assault claims that are timely brought under section 12.7—not just those that arose after the 2021 law took effect. This includes any claims that arose from actions occurring after Section 12. 7 took effect (March 18, 2019) that were brought within two (2) years of the complained-of action. Going forward, no cases involving workplace sexual assault or harassment will be subject to mandatory arbitration in New Jersey.

Recovering Damages for NJ Workplace Sexual Harassment

As New Jersey courts no longer have to defer to the previous version of the FAA, workers who have been harassed or assaulted can now bring lawsuits against their New Jersey employers. If you bring a successful claim, you may be eligible for various types of compensation. You may be able to recover medical expenses, lost wages, back pay, front pay, other monetary damages, attorneys’ fees, compensation for emotional distress, and possibly punitive damages.

New Jersey courts take claims of sexual harassment very seriously. If you believe you have been the victim of workplace sexual harassment, it is important that you act quickly. You must initiate legal action before the statute of limitations expires, or you may lose the right to recover. Contact an experienced employment attorney to help you evaluate your situation and protect your rights. With the help of a lawyer who will diligently fight for you, you can use the law to file a sexual harassment claim and get the justice you deserve.

[1] Text - H.R.4445 - 117th Congress (2021-2022): Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, H.R.4445, 117th Cong. (2022), http://www.congress.gov/.

[2] Sellino v. Galiher, ESX-L-8519-21 (N.J. Super. Ct. May 25, 2022)

Do You Qualify for Workers' Compensation?

SampleHubSpotUser@hubspot.com (Sample HubSpot User) — Wed, 23 Nov 2022 20:11:40 GMT

If you’re injured while working in New Jersey, you may be eligible for workers’ compensation. Workers’ compensation is available regardless of who (if anyone) is at fault for the injury. To determine whether and how much you may be able to receive from the program, the New Jersey Division of Risk Management takes several factors into consideration. Generally speaking, workers’ compensation is available to employees who suffer illness or injury arising “out of and in the course of employment.” Whether a particular injury fits this description, however, may not be immediately apparent.

Are you eligible?

Were you at work?

To qualify for workers’ compensation, the illness or injury that forms the basis of your claim must be the result of something that happened at work while you’re engaged in work-related tasks. What qualifies as at work and work related is also subject to interpretation. For example, many employees now perform a substantial amount of work from their homes, making this their usual place of work.

An injury sustained off the usual worksite could also be covered, such as one that occurs during work-related travel or while running errands for your employer. On the other hand, if you’re injured in the middle of the workday but you’re away from the worksite on personal business (for example, eating lunch at a restaurant during your break time), workers’ compensation would not provide coverage. Some situations may fall into grayer areas that require legal interpretation.

Is the injury related to your work?

In many cases, the answer to this question is obvious. If you suffer an acute injury from equipment you’re using at work, chemicals you’re exposed to, or slipping on the freshly mopped office floor, there may be little question of whether it’s work related. Other injuries and illnesses develop gradually over time, however, and may be more difficult to definitively connect to work activities. Additionally, when workers suffer cardiovascular and cerebrovascular events like heart attack, stroke, and pulmonary embolism, more substantial evidence is required to show they were caused “in a material degree” by the claimant’s work. If an employer or insurer disputes your claim, you can file a formal Claim Petition or an Application for an Informal Hearing with the Division of Workers’ Compensation.

What benefits can you receive?

Depending on the injury, workers’ compensation claimants may receive benefits for resulting medical treatment, lost wages, and disability.

Medical Benefits

Workers’ compensation covers medical treatment, such as prescriptions, doctor visits, and hospitalization, that is reasonably necessary to treat the work-related illness or injury. Medical treatment for New Jersey workers’ compensation is managed by Horizon Casualty Services, Inc. The employer or their insurer may select the treating physician, although there are exceptions for emergencies and when employers refuse to provide access to treatment. If you receive emergency treatment for a work-related injury, notify your employer of this as soon as possible to protect your benefits.

Lost Wages

If your work-related injury renders you unable to return to work for more than seven days while you’re under medical care, you may be eligible for compensation for lost wages. These temporary benefits are paid at a rate of 70% of your average weekly wage (although statutory minimums and maximum apply).

Permanent Disability

If you’ve received the maximum benefit from medical treatment (referred to as “maximum medical improvement or MMI) and the injury continues to impact your life, you may become eligible for partial or total permanent disability benefits. Partial disability applies to injuries that are permanent but don’t prevent the employee from being gainfully employed. Total disability benefits are available when the employee is no longer able to work due to the injury. You can find New Jersey’s minimum and maximum permanent disability benefit rates here. Additionally, certain “scheduled” losses, such as loss of function in limbs, sight, or hearing, entitle claimants to specific benefit amounts, determined by the body part affected and percentage of the disability related to that body part.

As you can see, many factors go into determining whether a worker is eligible for workers’ compensation and, if so, how much their entitled to receive. It’s not uncommon for employers or their insurers to deny benefits to claimants who deserve them. As a result, it can be useful to talk with an attorney about your claim. An experienced New Jersey workers’ compensation lawyer can help you understand your rights and how to effectively enforce them. To learn more about workers’ compensation in New Jersey, visit our workers’ comp page.

Resources

James P. Renner v. AT&T, NJ Sup. Ct. (A-71-11) (068744), 2014.

NJ Rev Stat §34:15 (2009).

Protection for Injured Workers. https://www.nj.gov/labor/workerscompensation/injured-worker-protections/. Accessed October 28, 2022.

Schedule of Disabilities and Maximum Benefits Exclusive of Amputation and Enucleation. NJ Department of Labor and Workforce Development. Effective January 1, 2022. Accessed October 28, 2022. https://www.nj.gov/labor/workerscompensation/assets/PDFs/Legal/2022_schedule.pdf.

Workers’ Compensation. Division of Risk Management. New Jersey Department of Treasury. Updated July 7, 2022. Accessed October 28, 2022. https://www.nj.gov/treasury/riskmgt/workers-comp.shtml

Workers’ Compensation Rates and Statistics. NJ Department of Labor and Workforce Development. Published January 30, 2022. Accessed October 28, 2022. https://www.nj.gov/labor/workerscompensation/tools-resources/rates-statistics/index.shtml - wcrates.

Is My Non-Compete Agreement Enforceable?

SampleHubSpotUser@hubspot.com (Sample HubSpot User) — Mon, 16 Sep 2019 17:10:22 GMT

Non-compete agreements are becoming more and more common. Once limited to high-level employees in whom companies invested a great deal of time and trust, these restrictions are now frequently imposed without negotiation on lower-wage and lower-level employees. The laws regarding which non-compete agreements are enforceable vary from state to state, and pending legislation may soon dramatically alter how New Jersey determines which non-compete agreements are enforceable against its workers.

What Does a Non-Compete Agreement Do?

A non-compete agreement prohibits an employee from engaging in any business activities that compete with their employer's business. Some of these agreements operate in the present to prohibit the employee from taking a second job. Others only take effect when the employee leaves the company, restricting where and for whom the employee can seek future work. These agreements are designed to protect an employer’s interests, especially if the business has invested a lot of time or money to onboard or educate a worker or if that worker possesses confidential or sensitive information about the employer's customers, operations, trade secrets, business practices, designs, or marketing/product development plans. Imagine, for example, how a high-level developer who has spent a decade at one prominent software company leaving to take a job with its biggest competitor could give the competitor a significant advantage. In situations like this, an employer often compensates such a valuable worker for giving up the freedom to leave and work elsewhere.

What a Non-Compete Agreement Should NOT Do

Even though state laws differ on what circumstances are necessary for a non-competition agreement to be enforceable, they share the premise that such agreements are not intended to hold a worker hostage or punish them for leaving a company by restricting their ability to continue to work in their profession. If a non-compete agreement seems to punitively restrict a worker’s right to seek employment rather than simply protect a company’s legitimate interests, a court may conclude it is unenforceable. Several courts have recently refused to enforce these agreements against low-wage workers, holding that they are against public policy. To make clearer which agreements are enforceable and which are not, many states have passed or are in the process of creating laws that establish clear guidelines for these agreements.

Changing New Jersey Law Regarding Enforceable Non-Compete Agreements

Such a bill is currently pending in the New Jersey legislature. Assembly Bill A1769 would require non-compete agreements comply with certain specific requirements to be enforceable against workers in the state. However, it is not yet law. The current New Jersey law requires courts to determine whether each non-compete agreement is enforceable on a case-by-case basis.

Generally, an agreement “will be given effect if it is reasonable under all the circumstances of [the] particular case,” and “simply protects the legitimate interests of the employer, imposes no undue hardship on the employee, and is not injurious to the public.”[1] These “legitimate interests” include customer relationships or goodwill, trade secrets, and confidential business information; simply preventing competition is not a sufficient interest.[2] A court balances the value of protecting these legitimate interests against the difficulty that the agreement imposes on the employee in finding other work in his or her field or other ways that it acts as a burden or restriction to the employee.[3]

Even if the protectable interests of an employer outweigh the burden of a non-compete agreement on an employee, New Jersey law allows the court to take the broader public interest into account. For example, one court found that the fact that a particular location was experiencing a shortage of qualified neurosurgeons was relevant to whether the terms of an agreement between a hospital and its former employee that prohibited the doctor from working in the area should be enforced.[4]

If a New Jersey court determines that an agreement is overbroad, it can “blue pencil” it to strike out parts as necessary until it narrowly accomplishes its objective of protecting a legitimate business interest without overburdening the employee’s rights or going against the public interest. The courts aim to “fulfill a restrictive covenant's lawful objectives while nevertheless ensuring that such agreements do not unreasonably hinder competition or employee mobility.”[5]

Seek Legal Advice for Questions About Enforceability

Unfortunately, this case-by-case approach means that there is no definite answer to whether a particular agreement is enforceable in New Jersey; each one’s validity depends on whether a court believes it to be reasonable. If you believe your non-competition agreement is unenforceable or unfair, consult with an attorney. It may be advisable for you to bring litigation against your employer to determine its enforceability.

The bill that is under review in the state legislature would create a basic framework of requirements for a non-compete agreement to be enforceable. Some of these rules would create specific requirements for the terms of the agreements (like limiting them in duration to one year after a worker’s employment ends). Others would address the process of how agreements may be legally entered into (for example, requiring that an employer provide notice of the agreement at the time a formal offer of employment is made or at least 30 days before the employee begins work). If this law is enacted, agreements that may have previously been enforceable in New Jersey could become unenforceable; it may also establish a way to avoid an unenforceable agreement without having to pursue litigation.

Currently, however, your best bet is to seek advice from an experienced lawyer if your current or potential employer has asked you to sign a non-compete agreement. An attorney can help you determine whether such an agreement is reasonable in your situation and, if appropriate, suggest limitations to protect your interests and negotiate compensation for any restrictions.

[1] Solari Indus. v. Malady, 264 A.2d 53, 56 (N.J. 1970).

[2] Coskey's Television & Radio Sales & Serv., Inc. v. Foti, 602 A.2d 789, 794 (N.J. Super. Ct. App. Div. 1992).

[3] Community Hosp. Group v. More, 869 A.2d 884, 898 (N.J. 2005).

[4] Id. at 897–99

[5] ADP, LLC v. Rafferty, 923 F.3d 113 (3rd Cir. 2019).

For additional information and updates regarding employment law, your rights, and how a lawyer may be able to help, subscribe to our blog.