McOmber McOmber & Luber

Business & Employment Lawyers Red Bank & Marlton New Jersey

(732) 842-6500

cjr@njlegal.com

In the best-case scenario, you enjoy your job and have a collegial relationship with your co-workers.  More often, though, people consider their jobs tolerable if the social environment is not unpleasant enough to offset the financial motivations for going to work. Sexual Harassment in the workplace is very common, though, and it often resolves around the same topics as it does for teens in school, namely the victim’s physical appearance and speculations about the victim’s romantic relationships and sexual behavior. The legal term for this is sexual harassment, and workplace sexual harassment is against the law. To find out more about seeking justice as a survivor of sexual harassment in the workplace, contact a sexual harassment lawyer.

Which Behaviors in the Workplace Count as Sexual Harassment?

Threatening to fire an employee or ruin his or her career if the employee does not engage in a romantic relationship with the work supervisor is one of the most egregious forms of sexual harassment. It is called quid pro quo sexual harassment. “Quid pro quo” is a Latin phrase that means “this in exchange for that.”

The only type of sexual harassment that is more obvious involves unwanted touching or attempted sexual assault; people who engage in this kind of sexual harassment may be held liable in a civil lawsuit. Many, if not most, cases do not involve physical contact or direct threats. Instead, they fit into the definition of a hostile work environment. This normally includes interfering with the victim’s ability to perform their job duties on account of the victim’s sex, gender presentation, gender identity, or sexual orientation. The following are some examples:

  • A woman frequently makes critical comments about her female coworker’s appearance, weight, and relationship status
  • Coworkers tease a heterosexual male employee about things he does that they consider inconsistent with the behavior of straight men, such as wearing light-colored clothing and orthodontic aligners and dancing as a hobby
  • Coworkers watch videos of comedy sketches where the humor revolves around stereotypes about women, even though one or more female employees have asked them to stop
  • A supervisor tells women employees that they will receive negative performance reviews if they do not wear makeup at work, even though the employee handbook does not require this
  • A gay male employee frequently makes comments about a straight male employee’s appearance, even after the latter has said that these comments make him uncomfortable
  • Coworkers frequently make jokes about an employee’s “ticking biological clock” and interpret almost anything she does (such as drinking nonalcoholic beverages at the office Christmas party or admiring pictures of other employees’ young children and grandchildren) as an indication that she is pregnant

Legally Protected Activities and Employment Discrimination Law

According to federal and state employment law, employment discrimination is when an employer takes adverse action against an employee because of a protected characteristic of the employee. Sex, gender, and family status are protected characteristics (as are race, religion, age, and disability), and a hostile work environment is an adverse action (as are refusal to hire, unfairly negative performance reviews, denial of promotions and raises, and termination of employment); therefore, sexual harassment in the workplace is a type of employment discrimination.

Employment discrimination law defines protected activities as actions that employees have the right to do, and in response to which the employer does not have the right to take adverse actions against the employee. Filing a complaint about sexual harassment or any other type of workplace discrimination is a legally protected action.

Exercising Your Legal Rights if You Have Experienced Sexual Harassment in the Workplace

All employees who experience discrimination at work have the right to file discrimination lawsuits, but they must first go through a preliminary process. As soon as possible, you could contact a Sexual Harassment Lawyer in New Jersey. As soon as you notice sexual harassment, you should write notes to yourself about it, including the dates of the harassment and who witnessed it.

Contact a New Jersey Employment Lawyer About Workplace Sexual Harassment

An employment lawyer can help you report workplace sexual harassment to your employer’s human resources department or file a lawsuit on your behalf. Contact McOmber McOmber & Luber in Red Bank, NJ, Marlton, NJ, or Newark, NJ to discuss your case.

Of all kinds of workplace harassment, sexual harassment is by far the most common. Each year, thousands of people are affected by unwanted sexual advances, abuse, and more at the hands of their bosses and coworkers.

While sexual harassment plagues the modern workplace, it’s often unclear what rights you have to protect yourself. Read on for more information about workplace sexual harassment, and find out how to get help today.

What Exactly is Sexual Harassment?

Understanding what constitutes sexual harassment is the first step in eliminating it.

Under New Jersey law, sexual harassment is considered a form of gender-based discrimination. Both the Title VII of the Civil Rights Act of 1964 and the New Jersey Law Against Discrimination (NJLAD) strictly prohibit all forms of discrimination in the workplace, meaning sexual harassment is a very serious crime.

While the term “sexual harassment” often refers to physical harassment of a sexual nature, it can go further than that. Sexual harassment also encompasses harassment based on a person’s sex or gender—no physical element necessary. Additionally, harassers can be either the same or opposite sex as the victims; whether they are clients, subordinates, bosses or coworkers makes no difference to the law’s effects.

Forms of Workplace Sexual Harassment

The state of New Jersey recognizes that sexual harassment can take many forms. Some common examples include, but are not limited to:

  • Paying a person less or refusing to promote them based on their sex
  • Unwanted sexual innuendos or conversations
  • Using sexist slurs
  • Deliberately making the workplace uncomfortable for someone based on their sex
  • Trading promotions or other advancements for sexual favors (this is referred to as quid pro quo harassment)
  • The retaliatory firing or punishing of an employee who has complained about sexual harassment
  • Sending sexual messages or photos
  • Physical and verbal abuse
  • Forced physical contact, including rubbing and patting

What Makes a Hostile Work Environment?

The key element in any sexual harassment case is whether or not the behavior in question has created a hostile work environment. As annoying as they may be, isolated incidents or teasing are generally not considered to be sexual harassment.

For a hostile work environment to be met, several factors must be present:

  • The harassment is extremely severe or pervasive and makes the employee feel like their job is at risk
  • An adverse employment decision is made (for example, the victim is fired)
  • The victim is a member of a protected class

If the sexual harassment has indeed created a hostile work environment, the victim may file an NJLAD claim.

Get Help From an Experienced NJ Sexual Harassment Lawyer

No one should have to suffer through sexual harassment in the workplace. Fortunately, there are experienced sexual harassment lawyers who are qualified to help you understand your rights and find the best course of action to take moving forward. Contact McOmber McOmber & Luber today for a free consultation.

In the fiscal year of 2021, the EEOC reported that 2,279 charges of sexual harassment reached their desks. This number comprised 40.8% of all workplace harassment charges.

Unfortunately, thousands of workplace harassment charges occur each year. Although it seems like common sense to treat people with kindness and respect,  this is not the experience of victims of sexual and other forms of harassment.

You may have experienced workplace harassment in your own occupation. If so,  you have options and help is available. A hostile work environment can take a toll in several ways.

Consider whether it’s time to hire New Jersey workplace harassment lawyers. An attorney can help you decide if you have a strong legal case against your employer due to the treatment to which you have been subjected.

If you’re not sure whether you need a lawyer yet, don’t worry, an attorney who is knowledgeable in workplace sexual harassment lawyer can help you consider your situation and options. Check out this guide to consider some questions you may have as a start.

Defining Workplace Harassment

What constitutes workplace harassment?  Harassing behavior contradicts protections provided by Title VII of the Civil Rights Act of 1964.

It also violates provisions determined by the Age Discrimination in Employment Act of 1967. This law relates to age discrimination in the workplace.

Workplace harassment violates the Americans with Disabilities Act of 1990. Finally, the Equal Employment Opportunity Commission mandates against offensive behavior, whether verbal or physical, involving:

  • race
  • color
  • religion
  • sex
  • gender
  • nationality
  • age
  • physical or mental disability
  • genetic information

There’s a difference between being rude and breaking the law. These behaviors become illegal when consenting to or tolerating them is a prerequisite to employment. Likewise, it becomes illegal if these behaviors lead to a hostile work environment.

Some companies and states progress beyond these standards. For example, some states consider discrimination against smokers harassment. New Jersey state law forbids discrimination against smokers.

The same often holds for discrimination based on arrest records. Harassment can come in many forms, including:

  • offensive jokes
  • slurs
  • assault
  • ridicule
  • insults
  • name-calling

There are also several types of harassment specific to the workplace.

Types of Workplace Harassment

As you can see, several unlawful actions could qualify as workplace harassment.  There are several ways to categorize these behaviors as workplace harassment. Read on to become more familiar with harassment based on protected identities and power dynamics.

Sexual Orientation Harassment

People have many reasons for revealing their sexual orientation at work. Sometimes it helps them avoid awkward encounters with coworkers who want to set them up or ask them out with people to whom they’re not attracted.

Other times, they don’t want to hide their private lives. Whatever the case, it’s a person’s right to work peacefully without facing harassment for their sexual orientation.

Fortunately, the law codifies these rights. Insulting a coworker or employee because of their sexual orientation is legally prohibited in workplaces. If you experience this behavior, you can report workplace harassment.

Harassment Using Power or Authority

Another type of workplace harassment comes from coworkers in positions of power. Someone may abuse their authority by intimidating workers to serve their purposes. They may also make the workplace environment hostile for employees based on personal grudges against them.

Things can also become complex and problematic when employers try to manipulate employees into firing offenses. For example, an employer may request that a person perform a task their disability prevents them from doing. This action could even cause disabled workers to suffer an injury.

Sexual Harassment

Sexual harassment constitutes a significant portion of workplace harassment cases. Sexual harassment can include several actions, including:

  • Showing audiovisual material with explicit sexual content
  • Making comments with sexual implications and meanings
  • Staring at somebody in sexual ways, particularly by staring at their breasts or buttocks

Please note that sexual harassment does not have to be aimed at you to report it. You can report sexually harassing behavior that you witness.

Harassment During Job Interviews

Harassment can also happen in the course of a job interview. Employers can take advantage of their position during an interview to ask discriminatory questions.

Even in cases where these questions are well-meaning, such as an employer may want to learn more about you on a personal level before hiring you, asking about protected identities such as age, sexual orientation, family status, and others is illegal. Interviewers must avoid questions pertaining to:

  • race
  • gender
  • religion
  • ethnicity
  • age
  • sexual orientation
  • country of origin
  • disabilities

You can consult with a lawyer if you feel these questions were discriminatory. You may have an employment discrimination case.

When to Hire New Jersey Workplace Harassment Lawyers

There are a few remedies you can pursue when you face harassment. First, the Equal Employment Opportunity Commission suggests that you discuss the actions with the perpetrator. Sometimes, you can explain to these people that their actions cause you discomfort and convince them to stop.

However, in many cases, this may not seem like a viable option. In these cases, you report harassment to a supervisor.  These supervisors may bring the news to the HR department to work through this issue.

Once you’ve gone through these channels, you can consult with a lawyer if no solution presents itself. Lawyers can help you bring a compelling case before the court to stop the harassment and potentially receive restitution for the harassment.

An experienced attorney is a helpful resource because of their extensive knowledge of your state’s legal provisions. They can determine whether your case can win before a jury.

Likewise, lawyers can help you reach a settlement outside the courtroom without a trial.  Hiring an attorney is an excellent option if somebody violates your workplace rights.

Work With Our Attorneys Today

If you’ve experienced workplace harassment, you may want to hire a lawyer like the experienced attorneys at McOmber McOmber & Luber. If you have experienced harassment in the workplace and are weighing your options, consider working with us! We’ve spent decades fighting for our client’s rights in court. We offer our services to several areas in New Jersey, including Red Bank, Marlton, and Newark.

We don’t just fight for your rights as a client; we approach every case with compassion and offer a touch of personal support when our clients need it most.

We refuse to take advantage of vulnerable clients. Our law firm works on a contingency basis, meaning we only get paid if you win your case. So, don’t hesitate. Schedule a free initial consultation with us today!

iOS 16 has just come out, and it includes a groundbreaking feature: the ability to edit or unsend messages.

The unsend feature makes it like the text was never there in the first place. But if that text included incriminating information necessary for a lawsuit, that presents a huge problem.

Screenshots and logs of conversations are often helpful proof in a case. But when the perpetrator can delete evidence, that provides a whole new level of complexity.

In this guide, we’ll discuss how the unsend message feature could affect future lawsuits.

How Does the iOS 16 Unsend Message Feature Work?

Once you get the new iOS 16 update, the unsend feature is very easy to use. You simply hold the message, then select the option “Undo Send.” Apple then removes the message from the devices of the sender and the recipient.

Some evidence does remain of unsent messages. The recipient will receive a notification that you unsent the message. That means it is impossible to unsend a message without a recipient’s knowledge.

Notably, the unsend feature only works for up to two minutes. If you do not unsend a message within two minutes of sending it, it’s impossible to delete it.

However, this feature does not work across the board. For starters, it only works between Apple devices (iPhone to iPhone). You cannot use the unsend feature while chatting with an Android device, since Android does not support Apple’s iMessage Further, it only works on devices with the iOS 16 update and above. If a phone with iOS 16 sends a message to a phone with iOS 15 and below, it’s impossible to unsend the message.

This means that at the moment of writing, only iPhones running iOS 16 can unsend messages. If an iPhone sends a message to someone with an iPad, that message will remain on the iPad. This is because iOS 16 has not yet been released for the iPad.

Can You Recover Unsent Messages?

As of the moment of writing, the answer appears to be no.

When you unsend a message, it disappears from the sender and recipient devices, as well as their cloud backups. You can recover deleted messages after 30 days, but such is not the case for the unsend message feature. Once it’s gone, it’s gone.

With that said, the question is whether Apple will give law enforcement user data. Big data companies have a long history of cooperating with the government for cases.

Apple has a track record of being privacy-centric. CEO Tim Cook has made it a point to say that Apple defends user privacy even when the government comes knocking. Apple lives up to its promise, too. In several instances, they have refused to provide user data to authorities. That means it’s highly unlikely that you could subpoena Apple to divulge user information.

To add to this complexity, iMessage-enabled devices don’t always send messages over standard cell networks. Two iMessage devices can send messages to each other entirely over WiFi or data. Since iMessage uses end-to-end encryption, that means it’s virtually impossible for a cell network to intercept and store these messages.

How Does This Affect Your Lawsuits?

The obvious answer is that a criminal can hide the evidence of their words. They could sexually harass a co-worker and then unsend the message so that co-worker cannot report it to HR. While the two-minute time limit is a tight window, that’s still enough time to rethink a potentially incriminating text.

It also allows criminals to send threats, warnings, or other abusive messages, and then quickly delete them. They could give you just enough time to read their words before unsending the message.

This could make it difficult for you to build a case. After feeling endangered, you might not be in the correct state of mind to gather evidence. Or, you may not want to risk angering the perpetrator further.

Since it’s unlikely that Apple would cooperate, retrieving that text could prove impossible. Cell networks would be unable to provide records of these messages due to the encryption.

Ways to Get Around the Unsend Message Feature

The best bet for you is to take a screenshot the moment you get a text. That way, you still have evidence once it disappears.

This presents a legal dilemma, however. The defendant’s lawyer could argue that a screenshot was doctored to show the incriminating text. A judge may rule the evidence inadmissible.

That said, this claim might be a hard sell with a court that is competent with digital technology. Screenshots include metadata that tells when the screenshot was taken, its resolution, and other file characteristics.

It could be difficult for someone to edit a screenshot and insert a false text. Tech experts could easily discover tells of a doctored photo with digital forensics, making your case stronger.

In other cases, you may be protected by simply not having iOS 16. If you have an Apple device with iOS 15 or below, you’ll have a record of that text. The same goes if you have an Android device.

If the evidence appeared in a group chat, that may be another way to get around the unsend feature. If one of the devices in the group chat is iOS 15 or below, the text will remain on that device. The user can capture a screenshot and send it to you.

Finally, you may have a copy of the text in your backup to iCloud or another cloud service. It’s important that once you receive the text, you stop all future backups. Then you can retrieve the message before it was unsent.

Get Help With Your Case

iOS 16 was a long-awaited update that offered the ability to unsend messages. The unsend feature permits a perpetrator to remove evidence and makes it nearly impossible to recover it. Know how this might affect your case and come prepared.

Not sure where to start? McOmber McOmber & Luber are here to help. Contact us today for unmatched legal assistance.

 

If you walk through an apartment building, you will probably see Amazon delivery boxes outside many of the apartment units, or else piled up behind the reception desk, where a receptionist has signed for them. Amazon deliveries are a ubiquitous aspect of life in the United States, and the COVID-19 pandemic has only increased the number of Amazon trucks on the street and Amazon boxes outside people’s doors. Amazon accounts for one out of every three warehouse jobs nationwide, but nearly one out of every two warehouse injuries, and between 2020 and 2021, the number of injuries at Amazon warehouses increased by 54%. Extreme temperatures are a major hazard not only for Amazon warehouse workers but also for delivery drivers. Given that temperatures are rising more quickly than ever and the Occupational Safety and Health Agency (OSHA) is making slow progress on issuing safety guidelines for working in excessive heat, more injuries are likely. If you need help reporting safety violations at your workplace to OSHA, contact a New Jersey employment lawyer. 

Three Tragic Incidents at Three New Jersey Amazon Facilities 

This summer, three Amazon workers died in workplace accidents in New Jersey: 

  • On July 13, employees at the Amazon warehouse in Carteret called 911 about a coworker who had fallen unconscious. First responders brought the warehouse worker to the hospital, where he died. The incident happened on Amazon Prime Day, one of the company’s busiest days, and the warehouse where the worker fell ill did not have air conditioning. 
  • On July 24, an ambulance transported an employee at the Robbinsville warehouse to a nearby hospital, where he died three days later. No other details are publicly available about the circumstances of his death. 
  • On August 4, an employee from the Monroe Township delivery station was hospitalized after an incident at work. He died four days later. 

The only thing more disturbing than the fact that these workers died of injuries they sustained at work is the lack of transparency about the accidents. A spokesperson for Amazon said that the man who died on July 13 suffered from a pre-existing medical condition and that the work accident was not the sole factor contributing to his death. Meanwhile, Amazon workers, many of them refusing to allow the press to publish their names for fear of retaliation, have expressed concern about the lack of protection for workers. Warehouse workers are expected to keep to a tight schedule that does not allow for frequent breaks, even when the temperatures reach the triple digits. Neither Amazon delivery trucks nor the company’s warehouses have air conditioning, and the number of fans they have is insufficient. OSHA has launched an investigation to see how unsafe working conditions contributed to the fatalities at the New Jersey Amazon facilities. 

Contact a New Jersey Employment Lawyer About Workplace Safety Violations 

An employment lawyer can help you report safety violations to OSHA or other relevant parties. Contact McOmber McOmber & Luber in Red Bank, Marlton, and Newark, New Jersey to discuss your case. 

It is hard to tell exactly how prevalent sexual harassment is in the workplace, but the Equal Employment Opportunity Commission (EEOC) estimates that the number of employees who experience sexual harassment at work is about four times as many as the number of people who file sexual harassment complaints with the EEOC. Fear of retaliation is only one of the many reasons that employees hesitate to report sexual harassment and other kinds of employment discrimination to the EEOC or their employer’s human resources departments.

Filing discrimination complaints is a protected activity, but employers still find plenty of ways to intimidate employees or otherwise make it difficult to report discrimination promptly.  Following the procedures required to remain eligible to file a lawsuit can be overwhelming even in situations that are not as inherently stressful as fighting back against workplace sexual harassment, but a New Jersey sexual harassment retaliation lawyer can help you with every step of the process.

When HR is Uncooperative

The logical place to start when trying to fight back against sexual harassment at work is to report it to human resources; even if you do not expect HR to find a quick solution to the problem, you at least have documentation that you spoke up about the harassment. Unfortunately, HR is not always helpful. The HR representative may promise to take action but then do nothing and give you evasive answers when you try to follow up. Even worse, they may try to discourage you from complaining. You should document all the unsatisfactory responses you get from HR and discuss them with an employment lawyer.

When Retaliation Seems Inevitable

One situation where many sexual harassment incidents go unreported is when the harassment is coming from a high-ranking person in the organization or someone in a direct supervisory position over the complainant. In situations like these, the victim has reason to fear retaliation, and HR might even side with the supervisor instead of with the employee who complains about him or her.

When Sexual Harassment is Ubiquitous in the Work Environment

In some workplaces, sexual harassment is the rule rather than the exception. Some employers have faced class action lawsuits from groups of women who described the workplace as a “frat house” environment. Just because certain behaviors are normal in the sense of being widespread, it does not necessarily mean that they are acceptable. You still have the right to complain about sexual harassment even if you are not the only target of it in your workplace; sometimes, when one person speaks up about sexual harassment, other coworkers will feel emboldened to do so, too.

Contact a New Jersey Employment Lawyer About Workplace Sexual Harassment

An employment lawyer can help you report sexual harassment even if it seems like your coworker and the human resources department, would prefer to ignore it. Contact McOmber McOmber & Luber in Red Bank, Marlton, Newark New Jersey, to discuss your case.

Even before the Great Resignation, many workers acknowledged that doing the jobs on which they depended for money caused them to do things that weighed heavily on their conscience.  From Dickens to Dilbert, writers have described the plight of the worker as having to witness awful things in order to prevent even worse things from happening. No one likes to be the one to tell financially struggling customers that it is not possible to waive that late fee; it is even worse when you see how much money your supervisors make. Unfair business practices are just the beginning. Some workplaces are cesspools of dishonesty, blame-shifting, bullying, and even outright criminal behavior. According to the law, though, your boss does not have the right to cheat people, abuse them, or put them in danger, and you have the right to speak out against it, whether the victims are employees, consumers, or the general public. To find out more about exercising your right to report workplace misconduct, contact a Red Bank whistleblowing and retaliation lawyer.

What is a Whistleblower?

A whistleblower is someone who exposes or speaks out against misconduct at the company or institution where the whistleblower is employed. These are just a few examples of types of misconduct that have been at the center of whistleblower cases:

  • Financial crimes such as fraud, money laundering, or embezzlement
  • Violation of safety regulations
  • Deceitful business practices
  • Widespread racial or gender discrimination
  • Knowingly providing unsafe products to the public
  • Failing to pay workers fairly

Whistleblowers can fight misconduct in a variety of ways.  It can be as simple as refusing to participate in certain objectionable work tasks or complaining to supervisors or as elaborate as filing a formal complaint with a regulatory body or notifying law enforcement. In either case, whistleblowers often get pushback from their employers.

What is Retaliation?

Retaliation is when an employer takes an adverse action against an employee who has engaged in a protected activity. Whistleblower actions are protected activities, and so are filing workers compensation claims and requesting family leave, among others. Adverse actions include termination of employment, unfairly negative performance reviews, involuntary transfers, and creating a hostile work environment. Employer retaliation is against the law.

The Law Protects Whistleblowers Against Retaliation

New Jersey law offers many protections for employees who engage in whistleblower actions. At the state level, the Conscientious Employee Protection Act (CEPA) covers many whistleblower actions under the category of protected activities. Other laws that address employer retaliation against employees who complain about discrimination and other forms of misconduct include federal laws such as the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA) of 1990, among others.

Contact an Employment Lawyer About Your Whistleblower Retaliation Case

A whistleblower retaliation lawyer can make the process of reporting misconduct less stressful and can help you recover compensation if you lost your job after filing a whistleblower claim.  Contact McOmber McOmber & Luber in Red Bank, New Jersey to discuss your case.

 

Most years, the temperatures exceed 100 degrees Fahrenheit for at least a few days in August, and not just in the Sun Belt; the New York metropolitan area, including the New Jersey suburbs, has been feeling the heat intensely. Despite this, the Occupational Safety and Health Administration, the federal agency that makes and enforces regulations related to workplace safety, does not have official rules about workplace exposure to extreme heat; it is in the process of drafting those rules, but it will probably be at least two more years before they are published.  Meanwhile, as everyone who can afford to do so stays indoors in the air conditioning and waits for delivery drivers to bring them everything they need, the delivery drivers are suffering from the heat. UPS workers who are routinely exposed to triple-digit temperatures for extended periods during the workday are demanding better protections. Complaining about unsafe conditions in your workplace is a protected activity; if you are worried that your employer might retaliate against you if you complain about extreme heat or other dangerous conditions at your job, contact an employment lawyer.

The Dangers of Heat-Related Illness on the Job

Anyone can suffer from heat-related illness when exposed to high temperatures for a long time.  Symptoms of heat exhaustion include headache, dizziness, feelings of weakness and skin tingling, and nausea; in extreme cases, it can also cause vomiting, loss of consciousness, or even death. Certain medications increase the risk of heat-related illness. If you spend time outdoors when it is extremely hot, the best way to stay safe is to take frequent breaks to go somewhere cooler, such as a shady area or well-ventilated room, and to drink a lot of water or electrolyte replacement drinks, such as Gatorade or Powerade.

Earlier this summer, a UPS delivery driver died of heat exhaustion during his shift in California, when the temperature was 110 degrees. As reported, many other drivers have become ill in similar situations.

UPS Workers Protest Unmanageable Work Schedules and Lack of Heat Protection

UPS delivery trucks and warehouses do not have air conditioning, and the workers can no longer tolerate the heat. They have asked UPS to supply fans and ice machines, but these requests are seldom fulfilled. UPS says that it is impractical to air condition the trucks since drivers must make frequent stops to open the doors and turn off the engine whenever they make a delivery.  The advice to take frequent breaks rings false because the intense time pressure that UPS places on delivery drivers is well known. UPS workers are in a better position than some, however, because they at least have a union to advocate for them.

Contact a New Jersey Employment Lawyer About Unsafe Working Conditions

Excessive heat is a serious safety hazard in the workplace, and an employment lawyer can help you report it without fear of retaliation. Contact McOmber McOmber & Luber in New Jersey to discuss your case.

Fraudulent, unfair, dangerous, exploitative, and downright illegal behavior can go on at public institutions and private companies for long periods of time before anyone does anything to stop it. When the public finds out, they often wonder why no one said anything sooner. Greed is too simple an explanation because hundreds, if not thousands, of employees stay silent about the misconduct while only a few people truly get rich off of it. More often, the motivation to stay silent is fear. Employees fear that if they speak out against the misconduct, they will lose their jobs or worse; we have all heard the saying “snitches get stitches.” Federal and state laws offer protections to employees who stand up to workplace misconduct by refusing to participate in it or by reporting it to regulatory bodies. To find out more about how the law protects you from whistleblower retaliation, contact a New Jersey whistleblowing and retaliation lawyer.

The Conscientious Employee Protection Act

In employment law, protected activities are actions that employees are free to do without fear of their employers punishing them for them, such as by firing them, refusing them a promotion, or harassing them at work. Examples of protected activities include filing a workers’ compensation claim and requesting disability accommodations, among others. A New Jersey law called the Conscientious Employee Protection Act (CEPA) defines a wide variety of whistleblower actions as protected activities. It aims to protect anything employees do to stop fraudulent and illegal actions by their employers, as well as actions that endanger the public.  These are some examples of activities protected under CEPA:

  • Refusing to participate in the employer’s objectionable actions
  • Reporting the misconduct to a work supervisor or regulatory body
  • Participating in an official investigation into the employer’s conduct

CEPA also offers specific protections for healthcare workers who observe conduct in their workplaces that violates standards of patient care.

Other Protections for New Jersey Workers Who Report Misconduct

CEPA is not the only law that protects workers who report employer misconduct, including but not limited to workplace safety violations and discrimination. Depending on the nature of the misconduct, you might be protected under any of the following laws:

  • New Jersey Family Leave Act
  • New Jersey Wage and Hour Law
  • New Jersey Law Against Discrimination

The New Jersey Supreme Court decision Pierce v. Ortho Pharmaceutical Corp also outlines protections against retaliation for whistleblower employees. Regardless of which law they invoke, workplace whistleblowers have the right to file a claim against an employer who retaliated against them for a whistleblower action. They can seek reinstatement of their jobs, compensation for lost income, and other remedies.

Contact a Lawyer About Whistleblower Retaliation Cases

Do not let your employer intimidate you from exercising your legal rights. A whistleblower retaliation lawyer can help guide you through the process of reporting misconduct that you witness at your workplace and dealing with the fallout. Contact McOmber McOmber & Luber to discuss your case.

Self-made superstars hold a certain mystique in our society.  You probably know the story of how your favorite musician or sports star went from rags to riches; for example, Bob Marley and Stevie Nicks were both parts of the cleaning staff of hotels to make ends meet before their music careers took off. When you visit a restaurant in the New York City suburbs, there is a good chance that your server has aspirations of singing on Broadway. In professional baseball, an entire category of players has had the worst of both worlds until recently; minor league players were required to undergo many hours of training per year, in exchange for little or no pay. MLB has recently settled a class action lawsuit with a group of minor league players demanding fair pay. If your employer does not abide by laws about fair pay, contact a New Jersey employment lawyer.

MLB Settles Federal Class Action Lawsuit for $185 Million

In February 2014, a group of minor league baseball players filed a federal class action lawsuit against Major League Baseball. The class of plaintiffs includes three groups of minor league players; the first participated in spring training in Florida in 2009, the second participated in spring training in California in 2010, and the third participated in spring training in Arizona in 2011. They alleged that pursuant to MLB policy, they received little or no pay during mandatory training sessions. In May 2022, MLB agreed to pay a class action settlement of $185 million to make up for the pay it owes to the players. Approximately $120 million of the settlement money will be paid to players, and the rest will cover attorneys’ fees.

By not paying players during training, MLB violated several employment laws. Pursuant to the Fair Labor Standards Act (FLSA), employers must pay employees during training. The training wage must be greater than or equal to the state minimum wage. Likewise, employers must pay employees for overtime for every hour in excess of the 40th hour that the employee works during a seven-day period; the overtime pay must be 1.5 times the employee’s usual rate of pay. During the time that minor league players spend in spring training, extended spring training, and instructional leagues, there are many weeks when they work more than 40 hours. Seasonal employees, by contrast, are not entitled to overtime pay. Examples of seasonal employment include Halloween costume stores that are only open in October and festivals that last a few days and employing workers for several weeks of preparation for the event. The lawyers for the plaintiffs successfully argued that minor league players are year-round employees instead of seasonal employees.

Contact an Employment Lawyer About Your Wage and Overtime Case

A wage and overtime lawyer can help you get fair pay whether you are an aspiring superstar or just working a 9-to-5. Contact McOmber McOmber & Luber, to discuss your case.

In employment discrimination cases, an employee must prove that the employer treated the employee unfairly and that the reason for this unfair treatment was a protected characteristic of the employee, such as the employee’s race, age, religion, gender, or disability. If the employer fired the employee, refused the employee a promotion, or wrote a negative performance review unsupported by evidence, it is easy to document this; in cases like these, the only challenge is to prove that the employer’s motivation was based on race, gender, or other protected characteristic. Harassment, also known as a hostile work environment, is an adverse action that falls under the category of employment discrimination.  When it comes to gender-based harassment, most employers and employees know more about the stereotypes they see in the media than about what the laws actually say. To find out more about sexual harassment in the workplace and how to prevent it, contact a  hostile work environment sexual harassment lawyer.

Why Should Employers Care About Sexual Harassment?

The most important reason to care about sexual harassment is that everyone has the right to be treated with respect at work. Besides, it is in the best financial interests of employers to have a workplace where no harassment takes place. Employees who are being harassed and bullied at work are less productive, and workplaces, where harassment is rampant, have high turnover. It takes a lot of time and effort to keep recruiting and training new employees because the previous ones quit.

Finally, sexual harassment lawsuits are expensive, even if they settle without going to trial. Employers can buy employment practices liability insurance (EPLI) or directors and officers (D&O) insurance to protect them from lawsuit-related financial losses. It is less expensive, though, to stop sexual harassment before it starts.

Preventing Sexual Harassment

Employers can prevent the worst consequences of sexual harassment by making it easy for employees to report incidents of harassment, whether the employee doing the reporting was a target of the harassment or a bystander. For example, set up an anonymous phone helpline, an online contact form, or both.

Finally, you should have employees complete an online training session about sexual harassment each year. It should give a variety of examples of scenarios that count as sexual harassment so that employees will know not to do these things at work and will know that they have the right to complain if they witness these actions. A surprisingly large number of people hold misconceptions about sexual harassment. They might not know that it does not have to include physical touching or verbal threats, for example, and they might not know that women are not the only people who can be targets of sexual harassment. Likewise, case law on sexual harassment changes frequently, so your employees’ knowledge might not be up to date.

Contact an Employment Lawyer About Your Sexual Harassment Case

A sexual harassment lawyer can help you report sexual harassment that you have witnessed in your workplace. Contact McOmber McOmber & Luber in Red Bank, New Jersey to discuss your case.

Under the New Jersey Law Against Discrimination (NJLAD) and other federal statutes including the US Pregnancy Discrimination Act (PDA), your employer has a responsibility to prevent pregnancy discrimination and provide pregnant employees with reasonable accommodation. A pregnant woman has the right to work so long as she is able to perform the functions of her job.

Pregnant employees should be treated the same as all other employees. It is unlawful for an employer to treat a pregnant employee less favorably than any other employee with a limiting condition or circumstance. An employer of a pregnant employee must provide reasonable accommodations in the workplace to the employee when the pregnant employee requests accommodations based on a physician’s advice. These accommodations can include bathroom breaks, water breaks, assistance with manual labor, rest breaks, or even temporary transfers to less hazardous work.

The employer must provide accommodations if provided to other employees. The employer must provide these accommodations unless the employer can demonstrate that providing the accommodation would be an undue hardship to the business operations of the employer.

Further, the employer cannot penalize the pregnant employee for requesting accommodations.

Examples of Pregnancy Discrimination

  • Treating pregnant employees differently
  • Paying pregnant employees less
  • Failing to promote pregnant employees
  • Refusing pregnancy leave or time off
  • Changing positions or responsibilities or demoting a pregnant employee based on the assumption that they cannot handle her usual tasks
  • Terminating or laying off a pregnant employee, or an employee who has recently had a child.
  • Forcing a pregnant employee to resign
  • Failing to provide accommodation other employees would receive

Contact An Experienced Pregnancy Discrimination Lawyer Today 

There are laws in place at both a state and federal level to protect the rights of pregnant employees. If you believe you have been the victim of pregnancy discrimination in the workplace, such as being fired, demoted, or harassed because of your pregnancy, the lawyers at McOmber McOmber & Luber, P.C. can help. To find out if we can assist you, please call our offices in Red Bank, New Jersey at 732-842-6500, in Marlton, New Jersey at 856-985-9800, or in Newark, New Jersey at 973-878-9040. 

While bad management or rude co-workers may make a workplace uncomfortable, a hostile work environment requires certain characteristics. To meet this bar there must be severe or pervasive harassment. This standard indicates that employees’ discomfort may not always be enough.

Defining Hostile Work Environment

A hostile work environment exists when discriminatory or harassing actions are so severe and pervasive that the actions interfere with the workplace. This could include preventing an individual from performing their job. Alternatively, this could mean that the environment is intimidating, offensive, threatening, or humiliating. This could also entail creating a workplace culture that harms an employee’s psychological well-being.

The Equal Employment Opportunity Commission (“EEOC”) provided guidance for interpreting hostile work environment since Title VII does not explicitly mention the term. The Supreme Court developed the standard of “totality of circumstances” to apply in these cases. The totality of the circumstances standard applies widely and allows courts to consider a variety of factors.

This standard establishes that one situation may be sufficient to meet the standard while several will not always meet it. A court could consider evidence of various situations to meet the standard. For example, evidence of disparate treatment or retaliation, harassing conduct by non-employees, and evidence of offensive or abusive conduct directed more frequently to a protected group may all reach the standard. Additional evidence to be considered could include evidence of conduct not explicitly based on a protected characteristic such as race or gender but inferred by conduct or evidence of a generally negative work atmosphere.

Common Signs of Hostile Work Environment

The EEOC finds that hostile environments arise most frequently in certain types of employment. For example, restaurants, oil and gas drilling rigs, car dealership, agricultural workspaces, and private prisons all have high frequencies of hostile environments. However, there are other risk factors that can indicate a hostile work environment. For example, male-dominated workplaces or workplaces with a number of vulnerable employees such as undocumented workers or prior abuse survivors have higher rates of hostile environments. Additional indicators include poor training of employees or unclear or ineffective remedial steps and investigations into discriminatory actions.

Potential Employer Solutions

Employers seeking to remedy or prevent a hostile environment can take a couple of different steps. First, ensure that supervisors at all levels especially at the first level receive proper training. This training should teach managers how to spot improper conduct as well as how to take action immediately. Taking on-the-spot action such as correcting an employee’s improper behavior can send a message to employees about the importance of respecting the other employees.

Second, ensure that there is a firm and clear investigation process. The system for remedying discrimination or harassment must be clear and easy to follow. Employees should feel comfortable using the process. Further, the investigations should also effectively address concerns and complaints. The investigation process will be critical to instilling confidence in the employer and remedying workplace hostilities.

Third, create an inclusive environment. Employers should encourage employees to report any inappropriate conduct. Creating an open environment where employees feel comfortable flagging negative experiences will enable employers to more effectively respond.

Finally, there should be discipline for individuals who violate the rules. The punishment needs to clearly inform the employee it is for the harassment. Additionally, the punishment could deter potential future harassers from acting.

Contact an Employment Lawyer

If you are experiencing a hostile work environment, an employment lawyer can help you discover your legal path forward.  Contact McOmber McOmber & Luber to discuss your case.

Now that recreational marijuana is legal for adults aged 21 and older, employers and employees struggle to navigate this new paradigm. Many employers look to the government for additional guidance to clarify the permissible use of drug tests.

Marijuana Drug Testing

Employers cannot consider marijuana usage as a factor when deciding whether to hire or fire someone. Additionally, employers cannot take adverse actions simply because an individual does or does not use cannabis. Specifically, an employer cannot use the presence of cannabis in the employee’s blood as a reason for an adverse action.

However, employers can perform random drug tests as part of a policy to prevent intoxication in the workplace. Employers can also test employees who appear impaired while working or who experienced a workplace accident. An employer can use the results of a drug test to dismiss, suspend, demote, or take other disciplinary action against the employee.

Marijuana Use

Employers can prohibit employees from using or possessing marijuana in the workplace and during work hours. If an employee arrives to work impaired, an employer must take two steps. First, the employer must obtain the opinion of a Certified Workplace Impairment Recognition Expert (WIRE) to determine whether the individual is impaired at work. Second, test the seemingly impaired employee to see if he or she is positive for marijuana using scientifically valid methods. However, as New Jersey did not yet develop WIRE standards, the employer does not need to administer a physical drug test at this time.

Employers cannot take negative action regarding compensation, terms, conditions, or other privileges or employment because of cannabis use. This provides employees some security in light of the new permissible use of marijuana recreationally.

Contact an Employment Lawyer

An employment lawyer can help if your employer inappropriately reacted to your marijuana usage in light of the new laws. Contact McOmber McOmber & Luber to discuss your case.

For most employees in New Jersey, the minimum wage is $13 per hour. For employees who make a substantial portion of their income through tips, though, the minimum wage is $5.13 per hour. The minimum wage for tipped employees represents the amount that the employer must pay them per hour; the assumption is that, once you add in their tips, their total pay will be at least $13 per hour. What happens when it is a slow night at the restaurant, though? When a tipped employee gets less than $7.87 per hour in a given shift, so that their total compensation does not add up to $13 per hour, the employer must pay them $13 per hour for that shift, as if they were hourly employees instead of tipped employees. 

Golf caddies at a country club in West Orange are currently involved in a legal dispute with their employer; they claim that their employer has not paid them the state minimum wage when it was the employer’s responsibility to do so. If you are employed as a tipped employee in New Jersey and your employer is not paying their fair share, contact the  employment lawyers at McOmber McOmber & Luber.

Caddies Accuse Employer of Paying Them Less Than Minimum Wage

Montclair Golf Club in West Orange is plenty pricey; it costs between $40,000 to $70,000 to join, and then members must pay between $5,000 and $15,000 in dues each year, depending on which membership privileges they get. Most of this money does not end up in the bank accounts of the caddies who work at the club from March until November. Caddies work a 10-hour shift, and the club pays them $60 for each golf bag they carry; they also receive tips from the golfers.  A round of golf is so long that one can realistically expect a caddy to carry only two bags per shift. This means that, unless the golfers tip well, the caddies earn less than the $13 per hour minimum wage.

This is one of the issues that the caddies’ lawsuit against Montclair Golf Club seeks to address.  They allege that the club treats them like hourly employees without paying them as such. Their supervisors ask them to perform additional tasks not listed in their job description, such as serving drinks to golfers on the golf course and cleaning bathrooms but do not pay them any additional money for doing these tasks. Furthermore, when the club is not busy, caddies must wait for hours before being assigned to a golfer, and they do not receive any pay for this time.

Contact an Employment Lawyer About Tipped Employee Wage Disputes

A wage and hour dispute lawyer can help you resolve disputes if your employer is not paying you their fair share during shifts when you do not get paid sufficient tips from customers.  Contact McOmber McOmber & Luber to discuss your case.

Do You Have Grounds for a Wrongful Termination Lawsuit?

Sometimes employers and employees part ways peacefully; for example, the employee leaves because they have reached retirement age and are financially secure enough to retire, or the employee leaves because they are relocating to another city because of their spouse’s work or to be near family, or maybe even leaving the workforce to spend more time with their young children or to start their own business.  If it is the employer’s decision to end the employment relationship, though, the employee is likely to experience some negative emotions about it, if only because the employee now has the stress of finding a new job or depending on credit cards or financial support from family until they can find one.  Whether the employer has the right to terminate the employee’s job depends on the details.  If you think your employer’s decision to fire you was an act of discrimination or retaliation, contact a New Jersey wrongful termination lawyer.

Downsizing or Discrimination?

New Jersey is an at-will state, which means that employers can fire you for almost any reason, even if you have not done anything wrong.  It is against the law, however, for an employer to fire an employee because of a protected characteristic.  The Civil Rights Act of 1964, the Americans with Disabilities Act of 1990 (ADA), and other laws have defined employment discrimination and the protected characteristics on which employment discrimination is based.  These are some examples of legally protected characteristics, which means that it is against the law for your employer to terminate your employment because of them:

  • Race or ethnicity
  • Sex, gender, or sexual orientation
  • Disability
  • Age
  • Family status, marital status, or pregnancy

If you think that one of these characteristics of yours was your employer’s true motivation for terminating your employment, contact a Red Bank wrongful termination lawyer.

Recession or Retaliation?

It is also illegal for your employer to fire you in retaliation for engaging in a protected activity.  These are some examples of protected activities:

  • Reporting a workplace safety hazard or other misconduct by your employer
  • Filing a discrimination complaint
  • Filing a workers’ compensation claim
  • Requesting an FMLA leave for medical or family caregiving reasons
  • Requesting accommodations for a disability

Severance Pay or Hush Money?

Employers sometimes try to stave off wrongful termination lawsuits by offering laid off employees a separation agreement.  The agreement sometimes includes severance pay, usually equivalent to several months of salary and health insurance benefits.  Do not sign the separation agreement until after you discuss it with a lawyer.  If you sign the separation agreement and accept the severance pay, you lose the right to sue for wrongful termination.

Contact an Employment Lawyer About Wrongful Termination of Employment

New Jersey’s at-will employment laws do not excuse discrimination and employer retaliation.  A wrongful termination lawyer can help you exercise your rights if your employer fired you because of a protected characteristic or protected action. McOmber McOmber & Luber, P.C.’s employment lawyers are available for a free consultation. Please call our office in Red Bank, New Jersey at 732-842-6500, our Marlton, New Jersey office at 856-985-9800, or our Newark, New Jersey office at 973-787-9040 to find out more.

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