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Newark Litigation and Appeals Law Blog

The difficulty with defining sexual harassment

While many New Jersey employers and employees may have an idea of what sexual harassment is, it is difficult to arrive at one accepted definition of the behavior that constitutes it. The definition of sexual harassment may vary by industry and company policy, with some fields more tolerant of behavior that would be considered problematic in a different work environment.

Before 1986, when the U.S. Supreme Court ruled that sexual harassment at the workplace violated the Civil Rights Act of 1964, workplace sexual harassment was not recognized at all. Generations of working women had instead been taught that suggestive comments and unwanted advances were just part of having jobs. Since the court's ruling, employers across the country have struggled to define sexual harassment as they write their companies' sexual harassment policies.

Employment law and violations in the workplace

A New Jersey employee may find that there are situations in which an employer's policies seem to be designed to keep a tight hold on company activities and culture. However, there may be instances in which such policies or requests could be in violation of an individual's rights. It is helpful to be familiar with these rights so that inappropriate policies can be addressed from the beginning.

One of the most challenging situations is that relating to discussions of salary. Although an employer might not want employees to share this information, the prohibition of such discussion can interfere with the rights of workers to organize. The practice of implementing such policies is actually very common in spite of the law. Another serious issue is insisting that certain employees are exempt from the right to extra payment for overtime work. The jobs that fit the category of exemption from overtime are limited and narrow. Similarly, employers might ask non-exempt workers to do activities off the clock, including handling phone calls or email responsibilities while at home. However, this activity is considered to be work that is subject to payment.

Joint employers liable for temp worker treatment

New Jersey employers who use temporary workers may be deemed accountable for how those workers are treated, according to the U.S. Department of Labor. The DOL has noted that over the years, common arrangements had resulted in a negative impact on many low-wage temporary workers who were often in vulnerable positions. The new guidance is designed to make employers who use subcontractors to provide them with workers more responsible for employment law violations.

In one case from 2015, DirectTV was ordered to pay contract workers just under $400,000 in back pay and other damages. It has been noted that by improperly classifying temporary employees, companies may hope to avoid giving them their mandated overtime pay or minimum wages. Such issues have long been cited as major concerns by those who study labor laws, with some academics echoing the Labor Department's claim that corporate responsibility had suffered under existing regulations.

EEOC files brief regarding sex orientation discrimination

People in New Jersey may be interested in following a case that is winding its way through the U.S. Court of Appeals for the 11th Circuit. The Equal Employment Opportunity Commission filed an amicus brief in the case, arguing that discrimination based on sexual orientation is prohibited by the Title VII of the Civil Rights Act of 1964.

The case involves a former college administrator who is a lesbian and is married to another woman. She alleges that she received good evaluations during her first two years of working for the College of Central Florida. She also claims she was told that she was on the way to becoming a college president. Later, she was demoted and a less-qualified male was given her job. She taught mathematics courses until her position was eliminated in budget cuts. While the school added adjunct positions, it would not consider her for one.

Leave under the FMLA and ADA

When New Jersey employees need to take medical leave, their employers have different requirements under the Family Medical Leave Act and the Americans with Disabilities Act. Workers should familiarize themselves with what each law requires in the event they need to take leave.

The FMLA provides that covered employees may take up to 12 weeks of unpaid leave during any 12-month period. Both workers who suffer from their own medical condition, as well as workers who need to take time to care for a family member, are entitled to this leave if the act applies to their workplaces.

New Jersey defamation claim against lawyer allowed by judge

Email and alcohol may be a bad combination, as seen in the case of a New Jersey lawyer who is now facing a defamation claim. The individual in question admitted that he was consuming alcohol at the time he sent the email. A judge has allowed the claim to proceed, noting that the lawyer's former client could sue. A dollar value has not yet been set in the suit.

The case is based on an email that was sent out by this lawyer to approximately 36 judges and other bankruptcy lawyers. The document allegedly indicated that the client in question attempted to influence the outcome of one of the firm's bankruptcy cases involving a hospital. It suggested that the client wanted assistance from the lawyer in bidding for the hospital in question. The client actually lost during the bidding process related to the hospital.

When working a second job on FMLA leave is prohibited

During the holidays, many employers seek advice from legal counsel about whether their employees are abusing the Family and Medical Leave Act. Most of the time, they want to know how to deal with workers who are on FMLA leave but are working somewhere else. It might help New Jersey employers and their employees as well if they understand when working another job on FMLA leave is and is not permitted.

Employers who find out that workers on FMLA leave are working a second job often discipline or terminate those workers for FMLA dishonesty, abuse or fraud. However, working at another job is not technically prohibited during FMLA leave. Workers with serious health conditions that keep them from performing manual labor, for instance, could perform clerical work instead.

Complaining about a hostile work environment

Not all employees in every situation are necessarily protected against a hostile environment in a New Jersey workplace. Sometimes, an employee will complain to a supervisor or to human resources about harassment at work only to be fired in retaliation. The reason is that if the harassment they face at work is not presented in the context of the person being part of a protected class, it might not be illegal for an employer to ignore the complain or terminate them.

It is illegal to harass or discriminate against an employee based on a number of factors such as age, race, national origin, disability, and religion. If the employee can show that the harassment is due to belonging to one of those protected classes, employers are usually prohibited from retaliating. An employee is also protected from retaliation for using the Family and Medical Leave Act. Whistle-blowers are protected as well.

Understanding what constitutes legal malpractice

It is unfortunate when a New Jersey resident has a bad experience with their attorney. While the person who does may think the attorney may have committed legal malpractice, that is not always the case.

An attorney is only expected to make the same types of choices that another reasonable attorney would have made, given the same circumstances. This does not mean that mistakes are necessarily professional negligence. In order to prevail in a legal malpractice case, the plaintiff must be able to prove several things. Plaintiffs must first establish that they either had an attorney-client relationship or that they were supposed to be the beneficiary of one. They must then demonstrate that the attorney either did something or failed to do something that constituted an unreasonable representation of their interests. Next, they must prove that the breach caused or contributed to injury or damages. Finally, they must prove that they did, in fact, suffer actual harm as a result.

Volkswagen lawsuits to be heard soon

New Jersey motorists may be interested to learn that the civil suits filed against Volkswagen AG are scheduled to begin soon. The company has been under fire recently for allegedly misleading authorities about the emissions its vehicles actually cause.

Sources report that more than 500 lawsuits have been filed against Volkswagen. The hearings are scheduled to be held in California; a fifth of the cased that have been thus far filed were brought in California. The issue will be heard in the Northern District of California and presided over by U.S. District Judge Charles Breyer, the brother of U.S. Supreme Court Justice Stephen Breyer.

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