On January 21, 2014, Governor Chris Christie signed into law S2995/A4486, which amends the New Jersey Law Against Discrimination (LAD) to prohibit discrimination based on pregnancy, childbirth or related medical conditions, including recovery from childbirth, in the workplace. This measure is effective immediately. The legislation requires employers to treat women affected by pregnancy in a manner similar to employees who are not affected by pregnancy, but who share in their ability or inability to work.
NJ Appellate Division Permits Criminal Indictment Against Employee Who Stole Employer’s Documents in Connection with LAD and CEPA Claims
The Superior Court of New Jersey, Appellate Division, has held that a public sector employee can be criminally indicted for stealing employer documents to support her claims under the New Jersey Conscientious Employee Protection Act (CEPA) and New Jersey Law Against Discrimination (LAD). In State of New Jersey v. Saavedra, the Appellate Division found, in a 2-1 decision, that a criminal judge is not required to perform a Quinlan analysis when deciding a motion to dismiss an indictment charging the employee with second-degree official misconduct and third-degree theft of public documents. Instead, the State merely must introduce evidence to support a prima facie case that the defendant committed the crime. In dissent, Judge Simonelli disagreed with the majority, concluding that the doctrine of fundamental fairness should be expanded to preclude criminal prosecution of employees for theft or official misconduct for taking confidential employer documents while engaged in protected activity pursuant to the whistleblower and anti-discrimination laws.
Beginning on January 6, 2014, New Jersey employers with 50 or more employees (whether those employees work inside or outside of New Jersey) are required to post the new mandatory gender equity notice which was released by the New Jersey Department of Labor and Workforce Development (NJDLWD) in December 2013. The notice implements a September 2012 amendment to the New Jersey Equal Pay Act. It informs employees of their right to be free of gender inequity or bias in pay, compensation, benefits, or other terms and conditions of employment under both federal and New Jersey law. Employers are required to conspicuously post the gender equity notice in a place accessible to all employees. In the event that a covered employer has an internet site or intranet site for exclusive use by its employees and to which all employees have access, posting of the gender equity notice on the covered employer’s internet site or intranet site will satisfy the conspicuous posting requirement.
On August 28, 2013, New Jersey Governor Christie signed Assembly Bill No. 2648, amending the New Jersey Law Against Discrimination (“NJLAD”) to prohibit employers from retaliating against employees who disclose to or request information from other employees or former employees regarding job title, occupational category, pay (including benefits), gender, race, ethnicity, military status and national origin for the purpose of investigating or taking legal action against potential pay discrimination. The amendment, effective immediately, does not require employees or former employees to divulge this information.
In a decision clarifying the standards of proof for retaliation claims arising under the Law Against Discrimination (“LAD”) and the Conscientious Employee Protection Act (“CEPA”), the New Jersey Supreme Court held in Battaglia v. UPS that, for purposes of an LAD retaliation claim, a plaintiff need only demonstrate a good faith belief that the complained-of conduct violates the LAD, and need not identify any actual victim of discrimination. As to the fraud-based CEPA claim, the Court held that the plaintiff must have “reasonably believed” that the complained-of activity was fraudulent. Finally, addressing the plaintiff’s emotional distress damages, the Court ruled that claims for future emotional distress must be supported by an expert opinion regarding permanency.
In a victory for employers, the U.S. Supreme Court ruled in University of Texas Southwestern Medical Center v. Nassar, that employees asserting retaliation claims under Title VII of the Civil Rights Act of 1964 (“Title VII”) must establish that the adverse employment action at issue would not have occurred “but for” an improper motive on the employer’s part. This “but for” causation standard, as opposed to the more plaintiff-friendly “motivating factor” causation standard used in Title VII discrimination claims, gives employers a better chance at defeating Title VII retaliation claims, particularly at the summary judgment stage.
Yesterday, the U.S. Supreme Court decided Vance v. Ball State University, one of the most-anticipated decisions of the Court’s 2012 Term. The Vance case concerns who is considered a “supervisor” for purposes of establishing an employer’s liability for hostile work environment harassment under Title VII of the Civil Rights Act of 1964. In a 5 to 4 decision, the Court affirmed the decision of the Court of Appeals for the Seventh Circuit, from which the case arose, and other lower courts which had defined “supervisor” to include only those individuals who possess the authority to fire, demote, promote, transfer, discipline or take some other tangible action against a harassment victim. The Court rejected the definition of “supervisor” proposed by the federal government, appearing as amicus curiae, and found in the EEOC’s Enforcement Guidelines, which links “supervisor” status to the ability to exercise direction over the victim’s daily work.
As previously reported, the group of individuals protected by the New York City Human Rights Law (“NYCHRL”) has been expanded to cover the status of being “unemployed.” The Amendment to the NYCHRL — which goes into effect June 11, 2013 — prohibits discrimination against job applicants because they are unemployed. The NYCHRL provides for a private right of action against employers.
Susan L. Nardone, a Director in the Gibbons Employment & Labor Law Department, will speak at the upcoming NJBIA Employment Seminar on Friday, April 12, 2013, at Forsgate Country Club. Ms. Nardone’s panel, “The EEOC: the New Sheriff in Town?,” will discuss how the EEOC’s actions and enforcement priorities can impact New Jersey businesses.
At the Gibbons Second Annual Employment & Labor Law Conference last month, one panel discussion focused on the Equal Employment Opportunity Commission’s (“EEOC”) recent activity and enforcement priorities. Among the panelists were Corrado Gigante, Director of the Newark Area Office of the EEOC, and Gibbons Directors, Christine Amalfe, Kelly Ann Bird and Susan Nardone.