The sponsors of pay equity legislation passed by the New Jersey Senate and Assembly earlier this year have announced that the State Senate will attempt to override Governor Christie’s veto of the bill on December 19, 2016. Senate Bill 992/Assembly Bill 2750 would amend the Law Against Discrimination (“LAD”) to promote gender pay equality. The New Jersey bill follows a trend of recently enacted state laws, in California, New York, Maryland, and Massachusetts, that aim to make it easier for plaintiffs to bring pay equity claims and subject employers to potentially greater damages.
The New Jersey Legislature is poised to take up another thorny issue for employers, salary history. Described by legislative sponsors as an effort to promote pay equity, the legislation would amend the New Jersey Law Against Discrimination to bar employers from asking job applicants about their salary history, or relying on it to determine salary at any stage in the hiring process. Two separate pieces of legislation have been introduced that prohibit an employer from inquiring about the salary history of an applicant. Assembly Bill 4119 was introduced on September 15, 2016 and referred to the Assembly Labor Committee. Senate Bill 2536 was introduced on September 15, 2016 and referred to the Senate Labor Committee.
According to the Equal Employment Opportunity Commission (“EEOC”), retaliation has become the most frequently alleged basis of discrimination of all charges received by the EEOC. In light of this, and after allowing for public comment on the EEOC’s proposed enforcement guidance issued earlier this year, on August 29, 2016, the EEOC issued its new Enforcement Guidance on Retaliation and Related Issues. This replaces the EEOC’s Compliance Manual Section 8: Retaliation, which was issued in 1998. The enforcement guidance sets forth the EEOC’s position on retaliation and addresses retaliation under each of the statutes enforced by the EEOC by providing a number of illustrative examples. Helpful to employers, the enforcement guidance concludes by providing employers “promising practices” to reduce the risk of violations. A general outline of the enforcement guidance follows.
On June 21, 2016, in Smith v. Millville Rescue Squad, the Supreme Court of New Jersey addressed the scope of the marital status protection afforded to employees by the Law Against Discrimination (LAD). The Court ruled that the LAD’s marital status provision is not limited to the state of being single or married but protects employees who have announced “they will marry, have separated, have initiated divorce proceedings or have obtained a divorce.”
On May 23, 2016, the U.S. Supreme Court, in Green v. Brennan, held that the statute of limitations for a constructive discharge claim begins to run when the employee gives notice of his or her resignation, not at the time of the employer’s last allegedly discriminatory act giving rise to the resignation. The “constructive discharge” doctrine refers to a situation in which an employer discriminates against an employee to the point that the employee’s working conditions become so intolerable that a reasonable person in the employee’s position would feel compelled to resign.
On June 15, 2016, the New Jersey Supreme Court, in Rodriguez v. Raymours Furniture Company, Inc., held that an agreement by an employee to bring claims against his employer within six months of the allegedly wrongful employment action was unenforceable insofar as the agreement applied to claims brought under the New Jersey Law Against Discrimination (“the LAD”). In 1993, the Court had held that New Jersey’s general two-year statute of limitations for personal injury actions provides the appropriate limitations period for LAD claims. In Raymours, the Court ruled that the employer’s attempt to reduce this limitations period to six months undermined the LAD’s specific enforcement scheme for the elimination of discrimination and thus, for public policy reasons, could not be judicially sanctioned. In addition, the Court found that the particular agreement at issue, set forth as part of the boilerplate in the employer’s standard employment application form, constituted an unenforceable contract of adhesion.
Employers must be aware of the changes to the New York City Administrative Code effective October 27, 2015, which prohibits employers from asking applicants regarding their criminal histories (typically called “Ban the Box”) prior to a conditional offer of employment. Under the new law called the Fair Chance Act (the “Act”) – which affects employers of four or more employees – employers may not (1) ask the applicant during an interview, (2) include a question on an application, or (3) conduct a separate search using public sources, such as the internet, to elicit information regarding an applicant’s criminal convictions or arrest records. The Act contains limited exceptions for persons who apply for law enforcement positions or for licenses concerning the regulation of firearms and explosives. Also, the Act does not prevent an employer from conducting a background check required by state, federal or local law that mandates criminal background checks or that bars employment based on a criminal history. An example of such requirement is regulations of a self-regulatory organization such as FINRA.
In Lico v. TD Bank et al., a federal court in the Eastern District of New York upheld an employee’s right to bring claims under the Fair Labor Standards Act (FLSA) against her employer, TD Bank (“the Bank”), for failure to provide adequate facilities and time for lactation breaks. The FLSA requires employers covered by the FLSA to provide employees (1) reasonable unpaid time at work to express breast milk for up to one year following childbirth and (2) a place, other than a restroom, that is not visible and is free from intrusion to do so.
Paid Suspension Not Adverse Employment Action Under Title VII, According to Third Circuit Court of Appeals
In Jones v. Southeastern Pennsylvania Transportation Authority, the Third Circuit Court of Appeals concluded that a paid suspension is not an adverse employment action in the “substantive discrimination context.” A predicate for a discrimination claim under the various anti-discrimination laws, requires the plaintiff to show she suffered an “adverse employment action,” generally described as an action or incident substantially serious to alter an employee’s compensation, terms, conditions, or privileges of employment. In the absence of an adverse employment action, a discrimination claim fails. Now, a paid suspension, as determined by the Circuit Court, is not significantly sufficient to affect the employment relationship to create liability under Federal and Pennsylvania State anti-discrimination laws.
Jury Awards $2.2 Million to Employees Over DNA Tests in Violation of GINA in “Devious Defecator” Case
A federal court jury in Georgia recently awarded $2.22 million to two employees in what is believed to be the first jury verdict in a Genetic Information Nondiscrimination Act (“GINA”) employment case since the law went into effect in 2008. Dubbed the “devious defecator” case by the court, Lowe v. Atlas Logistics Group Retail Services (Atlanta), LLC involved an employer’s testing of two employees’ facial cheek (or “buccal”) swabs to identify whether either was the individual who had been repeatedly defecating on the employer’s premises. All jokes aside, the decision is notable, not only because it is one of the few, if only, jury verdicts awarded under GINA, but because it serves as an important warning to employers that GINA may apply more broadly than some initially believed, while also possibly providing a blueprint for other courts on how to interpret the statute.