What constitutes an unlawful hostile work environment?

Hostile work environment is a frequently used and frequently misinterpreted phrase that has a specific legal definition. The New Jersey Law Against Discrimination establishes a hostile work environment exists when an employee can prove that the harassment he or she is enduring:

  • Would not have occurred but for the employee’s legally protected characteristic (sex, sexual orientation, gender, race, national original, age, religion, etc.)
  • The harassment was severe or pervasive enough to make;
  • A reasonable person of the same protected characteristic believes that;
  • The conditions of employment have been altered and the working environment is hostile or abusive.

New Jersey courts have adopted the severe or pervasive test to determine whether an employee has been subjected to an unlawful hostile work environment. As discussed in the July 1 blog, this can include a single incident or repeated conduct. The determinative factor is whether a reasonable person of the same protected class would believe that the work environment has been hostile.

If you believe you are experiencing a hostile work environment because you are in one of the protected categories, you should take notes for yourself about what is being done or said. In addition, if your employer has put in place a procedure to complain to someone at work about the problem, such as a human resources manager, you should consider making a complaint. It is also a good idea to speak to an employment lawyer for guidance.

New Jersey Supreme Court rules that supervisor’s use of ethnic slurs against an employee on only two occasions is enough to establish a hostile work environment claim

The New Jersey Supreme Court unanimously held that a supervisor’s two instances of offensive slurs were sufficient to support a hostile work environment claim.

On June 16, 2021, the Court held in Rios Jr. v. Meda Pharmaceutical, Inc., that two offensive slurs from a supervisor were severe and pervasive enough to establish a hostile work environment claim under the New Jersey Law Against Discrimination (“NJLAD”).

Plaintiff, Rios, is a Hispanic male who had been working at Media Pharmaceutical, Inc. since May 2015. On two occasions his direct supervisor used an ethnic slur while speaking to him. Rios brought the issue to Human Resources but they did not take any action.

The Court held that when viewing the evidence in the light most favorable to the plaintiff, a rational jury would be able to conclude that the slurs uttered by a direct supervisor were sufficiently severe or pervasive to create a hostile work environment. The Court took into consideration that the plaintiff reported the incident to his employer and the employer took no action. This decision significantly broadens the scope of the severe and pervasive standard necessary to assert a claim under the NJLAD.

Rights Of Home Health Care Aide Workers

Most home health care workers must be paid minimum wage and overtime pay. Minimum wage in New Jersey is $12.00 per hour and in New York City, it is $15.00 per hour. If a worker works more than 40 hours in a week, they are entitled to overtime pay which is one and a half times their regular rate of pay for each hour over 40. If overtime pay is due, the worker must receive it for every hour worked over 40 hours in a workweek.

Home care workers could be direct hires of an individual or family or they can be hired through a home health care agency. There are some exceptions to the minimum wage and overtime pay requirements for certain types of health aides. The type of work that the aide regularly does can affect whether or not the aide should be exempt from being paid minimum wage and overtime.

For example, there are certain exemptions to overtime pay for live-in home care workers. A live-in home care worker is entitled to minimum wage, but is not required to receive overtime pay in the following three special circumstances: (1) if they permanently live in the home of the person they are caring for seven days per week; (2) live there for extended periods of time, which is considered to be either five days a week for 120 hours or more; or (3) live in the home for five consecutive nights for less than 120 hours per week. A live-in worker does not have to be paid for time he or she spends eating or sleeping or other periods in which she has no duties to perform. When starting a new home care assignment it is very important to establish an agreement regarding a schedule concerning sleep time, meal breaks and other periods of off-duty time.

There are additional pay exemptions applicable to home health aides who provide companionship services. The companionship service exemption only applies if (1) the home care worker spends a maximum of 20% of the working time assisting with personal care such as bathing, dressing, toileting, grooming, cooking, cleaning, etc.; (2) the worker does not perform any medically related tasks that are usually done by a nurse; or (3) the worker does not perform any general household work for other members of the household besides the one that the worker is taking care of, such as laundry or cooking.

Also, some home care workers are paid a daily or weekly rate instead of an hourly wage rate. Just because an employee is compensated with a daily or weekly rate, and not an hourly wage rate, does not mean that employee is not entitled to overtime pay. All eligible employees are entitled to overtime pay. If you are not paid by the hour, in order to calculate your overtime pay rate, you divide your total weekly salary by the number of hours you worked in the week, which gives you your regular hourly rate. Then you multiply the hourly rate by 1.5 and multiply that times the number of hours over 40 that you worked in that week, which gives you the total overtime pay you are owed for that week.

Lastly, the law requires home health care agencies to maintain accurate records of each employee’s daily and weekly hours worked per week, but many agencies do not do so. This makes it more difficult for employees to make a claim against their employer for unpaid wages. Therefore, it is important for each employee to keep their own records of the time they begin and end work each day in case the employee needs to make a claim for unpaid wages. The employee should also keep records of the total pay they receive each week, whether it is by check, cash or both.

Arbitration in New Jersey Law Against Discrimination Claims

There has been much debate in New Jersey on whether arbitration agreements are enforceable in discrimination, harassment and retaliation claims brought under the New Jersey Law Against Discrimination (NJLAD). The New Jersey District Court settled this matter in N.J. Civil Justice Institute v. Grewal in March 2021.

Employers frequently require employees to sign an arbitration agreement at the start of their employment. An arbitration agreement waives an employee’s right to litigate claims against his or her employer in court. Instead, the claims would be heard in an arbitration, which is a less formal dispute resolution process.

Employers favor arbitration over the court for several reasons that are detrimental to the interests of employees. First, arbitration is done in private so the employer avoids the negative publicity that may result from a public court case. Second, arbitration limits the employee’s right to discovery, which is the right to obtain all information relevant to the claim. Third, an employee may have perhaps one arbitration in his or her lifetime while a large company will have many. Since the arbitrator is selected and paid by the parties there is a belief that arbitrators favor employers to obtain repeat business. Fourth, an arbitration decision is final and there is no right to appeal.

In March 2021, the New Jersey District Court ruled in N.J. Civil Justice Institute v. Grewal, that the Federal Arbitration Act (FAA) overrides the NJLAD’s ban on arbitration clauses. Therefore, arbitration clauses are permissible for claims brought under the NJLAD.

Consequently, the NJLAD does not provide employees with a defense against enforcing arbitration clauses for their claims related to discrimination. However, there are other flaws that could make an arbitration agreement unenforceable. For example, confusing or vague wording could make an arbitration agreement unenforceable. If you believe you have a claim against your employer, but may be subject to an arbitration agreement, it is a good idea to contact a lawyer to determine whether you may be able to bring your claim in court.

Beware of No-Fault Attendance Policies

There is a practice that some employers utilize that employees need to understand. It is known as a “No-Fault Attendance Policy.”

These policies provide for automatic discipline, up to termination, after a specified number of absences or “occurrences” within a certain period of time, regardless of the reasons for the absences.

No-fault policies are becoming common because they are easy to implement and they assure a uniform application of policies to all employees. However, there are specific issues that arise when implementing such policies that can violate employee rights.

If the employees’ absence qualifies for leave under the Family Medical Leave Act (“FMLA”) or if it is for a disability within the meaning of the Americans with Disabilities Act (“ADA”), then there are special considerations that must be put into place. The EEOC and the courts have determined that an employer may not apply the no-fault policy to an employee who needs leave that is covered under the FMLA or ADA. Thus, those days off may not count as “occurrences.”

Therefore, if you are terminated for violating a No-Fault Attendance Policy based on legally protected absences, you should consider speaking to an employment lawyer.

New Jersey’s Minimum Wage increases to $12 per hour starting January 1, 2021

The 2021 minimum wage for most employees in New Jersey will be $12 per hour — an increase from $11 per hour in 2020.

The minimum wage for tipped employees is increasing to $4.13 per hour, up from $3.13 per hour in 2020.

There are exceptions to the $12 per hour minimum wage requirement such as employees in “training” seasonal employees, “small” employers (fewer than 6 employees), agricultural workers and direct care staff at long-term care facilities.

In training employees are to receive a “training wage” that is equal to at least 90% of the minimum wage for the first 120 hours of work.

Seasonal employees and small employers with fewer than six employees will have a minimum wage of $11.10 per hour in 2021, up from $10.30 in 2020.

Agricultural workers have a minimum wage of $10.30, which is the same as 2020.

As of November 1, 2020, direct care staff members in long-term health care facilities began to receive a minimum wage that is $3.00 higher than New Jersey’s current minimum wage which brings them to a minimum wage of $15.00 in 2021.

By 2024, the minimum wage rate in New Jersey will reach $15 per hour with a one dollar increase each year.

New York City Expands Paid Sick Leave for Employees

Effective January 1, 2021, New York City is expanding its paid sick leave law. The amendments to the NYC Paid Safe and Sick Leave Law (“NYCPSL”) provide the following:

  • Employers with 100 or more employees must provide up to 56 hours of paid sick and safe leave per calendar year,
  • Employers with 5-99 employees must provide up to 40 hours of paid sick and safe leave per calendar year, and
  • Employers with 4 employees or less must provide paid sick and safe leave if the employer’s net income is greater than $1 million or unpaid sick and safe leave if net income is $1 million or less.

Further, NYC employers are required to note the amount of sick and safe time accrued and used during each pay period as well as each employee’s total balance accrued sick and safe time on each employee’s pay statement.

Sick time is defined in § 20-914a as time for absence from work due to an employee’s or a family member’s mental or physical illness, injury or health condition or need for medical diagnoses, care or treatment of a mental or physical illness, injury or health condition or need for preventative medical care or closure of an employee’s place of business by order of a public official due to a public health emergency or such employee’s need to care for a child whose school or childcare provider has been closed by order of a public official due to a public health emergency.

Safe time is defined in § 20-914b as time for absence from work due to any of the following reasons when the employee or employee’s family member has been the victim of domestic violence.

This expanded sick leave is in effect as the COVID outbreak continues to surge through the winter months. The NYCPSL is broad and includes time off needed to take the COVID vaccine once it becomes available and time off to care for a health condition of the employee’s family member.

Additionally, an anti-retaliation provision was added to the NYCPSL. The anti-retaliation provision is implicated when an employee’s use of NYCPSL is a motivating factor for an adverse employment action. The NYCPSL also permits the NYC Department of Consumer and Worker Protection (“DCWP”) to bring pattern or practice enforcement actions with expanded subpoena and investigative powers, that could incorporate civil penalties for each employee who was not permitted to utilize NYCPSL.

These benefits are on top of the sick leave employers must provide under existing state and federal law.

New Jersey COVID-19 Employment Update: Executive Order 192

The Covid-19 outbreak continues to lead to new laws and regulations in the workplace. The most recent is Executive Order 192, issued by New Jersey Governor Phil Murphy which took effect on November 5, 2020. This Order requires employers with employees who are physically present at a workplace to adhere to strict safety requirements.

The Executive Order provides that every business, non-profit organization and governmental and educational entity must:

  • Require that individuals at the worksite maintain at least 6 feet of distance from one another to the maximum extent possible.
  • If the nature of the work does not allow for 6 feet of distance, employers must ensure that each such employee wears a mask and must install physical barriers between workstations wherever possible.

Two important measures included in the Executive Order are that the employer must:

  • Exclude sick employees from the workplace and follow requirements of applicable leave laws; and
  • Promptly notify employees of any known exposure to COVID-19 at the worksite.

Governor Murphy along with the New Jersey Department of Health and the Department of Labor and Workforce Development put these standards in place and have created a “COVID-19 Worker Protection Complaint Form” available on the New Jersey Department of Labor website, where you can anonymously report unsafe conditions.

Can you be fired for having to quarantine?

An issue facing employees right now is the technicalities related to returning to the workplace. For employees who are back at work, it is unsurprising that situations may arise where the employee is exposed to COVID-19, a family member has COVID-19 or they themselves may catch the virus whether at work or elsewhere. Now the issue becomes, what does the employer do for the 14 days or so that their employee is mandated to stay home? The short answer is that an employer cannot simply fire an employee who has to be out of work due to having to quarantine.

New Jersey Law prohibits COVID-19 related employment discrimination. Under Executive Order 103, Governor Murphy specified that an employer cannot terminate or refuse to reinstate an employee who has or is likely to have an infectious disease that requires the employee to miss work. The employee is also protected from retaliation or penalty for requesting time off for having to quarantine.

In New York, Governor Cuomo enacted the COVID-19 Quarantine Leave Law, the COVID-19 Paid Sick Leave Law and expanded New York’s Paid Family Leave Law (PFL) and Disability Benefit Law. These laws require New York employers to provide job-protected sick leave to employees who are subject to a mandatory or precautionary order of quarantine.

Further, the Families First Coronavirus Response Act (FFCRA) is a federal law that went into effect on April 2, 2020 which provides extended coverage for employees who need to take leave because of COVID-19 by amending the Family and Medical Leave Act of 1993 (FMLA). The Emergency Family and Medical Leave Expansion Act expands coverage to most employees who have to quarantine.

What if my employer violates one of the above provisions?

If your employer fires you for having to quarantine due to COVID-19, there are a few courses of action you can take:

In New Jersey, you have the option to file a claim with the New Jersey Department of Labor and Workforce Development, where they will conduct an investigation and then determine if you should be reinstated to your position and if your employer should be penalized. Alternatively, you could file a lawsuit in the New Jersey Superior Court. Claims filed with the Department of Labor and Workforce Development will be processed in the same manner as claims for wages filed with the Division of Wage and Hour Compliance. There will be a hearing conducted by a Wage Collection Referee and the employer and other witnesses may be required to provide a testimony. The Wage Collection Referee can issue a decision and provide remedies. If the results of the investigation find that the employer acted in violation of any of the COVID-19 laws, the employee may be reinstated, and the employer faces a monetary administrative penalty.

In New York, you may file a claim with the New York State Department of Labor who will conduct an investigation.

Under the FFCRA, Employers in violation of the provisions are subject to the enforcement provisions as well as penalties under the Emergency Family and Medical Leave Act. The employer can be liable for compensatory damages (back pay, lost benefits, front pay, and emotional distress) as well as liquidated damages (double damages), attorneys’ fees and expenses, pre- and post-judgment interest, injunctive relief, and reinstatement.

Lastly, throughout the pandemic, many employers have improved their remote work systems and have allowed their employees to work from home if need be. It is important to familiarize yourself with your employers work from home policy just in case you find yourself in a situation where you must quarantine.

Employment Litigation In The Wake Of The COVID-19 Pandemic

The COVID-19 pandemic has triggered a drastic shift in the employment landscape that may result in a wave of litigation alleging employers violated existing labor laws and the recently enacted coronavirus leave law.

While employees in the greater New York and New Jersey area have legal protections under local, state, and federal law, employment-related disputes are not uncommon. Though the regional economy remains under lockdown more or less, the new normal may see an increase in certain types of employment litigation, such as:

A. Wage And Hour Claims During The COVID-19 Crisis

Regardless of the pandemic, non-salaried workers in New York and New Jersey are entitled to the state’s current minimum wage as well as overtime for all hours worked over 40 per week.

While traditional tracking mechanisms allow employers to determine when workers start, take lunch breaks, leave for the day, etc. are no longer in use, businesses that have not adapted to track clock worker hours offsite could face wage theft claims by workers alleging they worked through breaks. Despite the COVID-19 crisis, employers must be mindful of their obligations under the federal Fair Labor Standards Act (FLSA) and applicable state labor law.

If when businesses begin to re-open, employers may also face potential liability if they require workers to take certain precautionary measures before entering the premises (such as temperature checks) or donning personal protective equipment prior to starting a shift. These activities may be construed as off-the-clock work for which employees must be compensated.

B. Paid Sick Leave Disputes During The Coronavirus Outbreak

The Families First Coronavirus Response Act (FFCRA) requires employers with fewer than 500 employees to provide them with a certain amount of paid time off for COVID-19-related reasons, such as falling ill or caring for a child whose school has closed.

Employers in New York and New Jersey have a legal obligation to determine which employees are eligible and then provide them with the proper amount of paid leave time. Businesses can face lawsuits for: a) Unfairly denying paid leave; b) Miscalculating pay; and c) Retaliating against employees who request paid leave.

C. Safety (OSHA) Violations As A Result Of The Pandemic

Workers in hospitals, food processing facilities, grocery stores and others on the front lines who contract COVID-19 due to unsafe working conditions face an uphill battle. While the Occupational Health and Safety Act requires employers to ensure that the work environment is safe, the law does not allow workers to sue their employers over unsafe working conditions. Workers who fall ill due to the pandemic may be entitled to worker’s compensation, albeit that proving they contracted the novel coronavirus at work can be difficult.

If you have any questions regarding your employment or termination, please contact us at mschley@schleylaw.com or at 732-325-0318.