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McOmber McOmber & Luber

Business & Employment Lawyers Red Bank & Marlton New Jersey

(732) 842-6500

Red Bank Legal

It is common knowledge that wearing a mask helps stop the spread of COVID-19. But what if your job requires you to come into close contact with people who cannot wear a mask?  That is the scary reality for many of those working in the dental industry. 

If you are a dental healthcare professional (DHCP) such as a dental assistant or hygienist, you are accustomed to being on the receiving end of a patient’s aerosols. Prior to COVID-19, a simple face shield would have been all the protection you needed. However, in the age of COVID-19, dental offices must adhere to strict safety protocols. McOmber McOmber & Luber, P.C. is following this closely and has the latest information on what steps dental offices should be taking to protect you in the workplace. 

Personal Protective Equipment (PPE) 

The Occupational Safety and Health Administration (OSHA) requires your employer to provide you with appropriate PPE. 29 CFR 1910 Subpart I. Your employer must provide training on when to use PPE, what PPE is necessary, how to properly use PPE, and how to properly dispose, disinfect or maintain PPE. 

Masks, Eye Protection and Gowns 

If you work in a community where there is minimal transmission, the Centers for Disease Control and Prevention ( CDC) recommends a surgical mask, eye protection such as goggles or a face shield, a gown and gloves during procedures where there will be splashes or sprays.  

If you are in in a community with moderate or substantial transmission rates, CDC recommends you wear this PPE at all times. If you are working on someone that will cause splashes and sprays, CDC recommends that you wear a N95 respirator or a respirator with a higher protection level. Respirators should be fit-tested, and staff needs to be trained on proper use. 29 CFR 1910.134.   

Screening Dental Employees for COVID-19 

Your employer should be conducting health screenings and monitoring employees on a daily basis. This includes temperature checks and asking about COVID-19 symptoms. If DHCP are ill, your employer should remind them to stay home and they should not be penalized for doing so. Sick leave policies should be flexible, non-punitive and consistent with public health guidance.   

Return to Work 

If I Was Exposed to COVID-19, What Should I Do? 

Your course of action depends on whether or not you are vaccinated, the level of community transmission at the time of your exposure and if you are immunocompromised. Generally, if you are fully vaccinated and you are not showing any COVID symptoms, you do not need to quarantine or be excluded from work. However, the New Jersey Department of Health (NJDOH) recommends you get tested and continue to monitor for COVID symptoms for 14 days following exposure. 

If you are NOT vaccinated and you have been exposed, the NJDOH recommends that you be excluded from work for 14 days from the date of last contact. If this is the case, you should inquire about earned sick leave, workers’ compensation, and temporary disability insurance. 

If you are a DHCP and have a suspected or confirmed case of COVID-19 with mild to moderate illness, you can return to work when it is within 10 days since your symptoms first appeared, at least 24 hours have passed since your last fever, and your symptoms have improved.  

Protecting Staff by Limiting Procedures and Visitors 

Dental healthcare providers require close physical contact with patients. It is the nature of the job. Nevertheless, your employer can take steps to minimize your exposure. For example, physical distancing is important to minimize risk. This can be achieved by limiting the number of people in the waiting rooms and arranging seating 6 feet apart, reducing the number of dental appointments per day, limiting visitors to the dental facility and implementing telemedicine calls when possible. Your employer should also consider a 15-minute interval between patients so that there is time for aerosols to settle and be cleaned from surfaces. www.cdc.gov. 

Reporting Your Employer and Retaliation  

If you believe your employer is not following proper safety measures, you can file a complaint with the New Jersey Department of Labor and Workforce Development (DOLW) and OSHA. The State has also set up a COVID-19 Information Hub that allows you to file a complaint for COVID-19 violations. You can find that form here. 

Your employer cannot retaliate against you for filing a complaint pursuant to the New Jersey’s Conscientious Employee Protection Act (CEPA) as well as other state and federal laws.  

Dental hygienists and assistants are at great risk for contracting COVID-19 because they are in close contact with many patients every day. That is why it is so important that employers follow state and federal safety requirements meant to protect you in the workplace. If you are concerned that your employer is not doing enough to keep you safe and/or you have expressed your concerns and fear retaliation, McOmber McOmber & Luber P.C. has experienced lawyers to help you. 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.  

On October 18, 2021, the Division on Civil Rights in New Jersey adopted amendments to the New Jersey Family Leave Act (NJFLA). These amendments expand protections for family leave related to COVID-19. Acting Attorney General Andrew Bruck emphasizes that this expansion will help families in light of the COVID-19 pandemic. These amendments offer New Jersey workers more qualifying reasons to take leave.

New Family Leave Provisions

The new rules reflect that the NJFLA allows eligible employees of covered employers to take as many as 12 weeks of job-protected leave during a 24-month period in order to care for and/or bond with a new child or to care for a family member or someone who is equivalent to family with a serious health condition. This new rule also expands the definition of “covered employees” to workplaces with 30 employees or more worldwide.

Further, the updated rules state that “parent” and “child” include parent-child relationships within LGBTQ families. Additionally, employees no longer have to give notice 30 days before taking leave in some situations. This new allowance includes employees who need leave to care for a family member during the pandemic.

Finally, furloughed employees are “eligible employees” under paid leave if the employer slowed business operations in response to COVID-19. The new rules also empower employees to take leave by protecting their positions. Generally, employees can return to the same positions they held prior to taking leave.

Get Legal Assistance

If you believe you fall under the expansion of the New Jersey Family Leave Act and need assistance understanding your rights or bringing a claim, we can help. For further assistance, please contact our Red Bank, New Jersey, office at (732) 842-6500, or our Marlton, New Jersey, office at (856) 985-9800, or our Newark, New Jersey office at (973) 787-9040.

With the summer winding down, you may be thinking of taking those last few vacation days before the hustle and bustle of fall. Whether you are entitled to this time or whether your boss can force you to work on your days off, here is what you need to know.  

Employees are not entitled to vacation days 

If you work for a private employer, New Jersey does not require them to provide paid or unpaid vacation days. Most vacation days are provided for in employment agreements, collective bargaining agreements (CBA) or as a policy in employee handbooks. According to the New Jersey Department of Labor (NJDOL), if an employer chooses to offer vacation days, they must be administered “uniformly” in accordance with their established policy or employment agreement.  

What to do if your employer refuses to approve vacation days or has rescinded them 

First, check your employee handbook, employment contract, or CBA to understand your employer’s procedures and policies for receiving vacation time. If your employer offers this time off and is in violation of its policy, you may want to talk to your human relations department or a private attorney because they may be in breach of contract. Likewise, if your employer has rescinded your pre-approved vacation days, and you feel they are discriminating or retaliating against you, they may be in violation of state or federal law.   

Can my employer call me during vacation or ask me to do work on my days off? 

Hopefully, your vacation is free from interruption, and you are able to enjoy your time off. However, this is not always the case. If you are an hourly, non-exempt employee and your employer does contact you during your time off, your employer will likely be required to pay you for the time you spend working. An hourly, non-exempt employee is someone who is paid an hourly wage and is entitled to minimum wage and overtime for working over 40 hours per week.  

Can I be disciplined or terminated if I refuse to be available while on vacation? 

Again, you need to review your company’s policies and procedures. If you believe you are being singled out or treated unfairly compared to other employees who take vacation days, your employer may be in breach of contract or in violation of federal or state law. If you believe this to be the case, McOmber McOmber & Luber, P.C. has experienced wage and hour lawyers here to help you. To find out more, call our office in Red Bank, New Jersey at 732-842-6500 or our Marlton, New Jersey office at 856-985-9800.  

As COVID-19 cases continue to plague the country, businesses, employers, and other institutions are beginning to ask individuals about their vaccination status. In some cases, they are requiring proof of their status. If you are wondering if this is legal, McOmber McOmber & Luber, P.C. has some answers. 

The HIPAA law 

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) is a federal law. It protects a person’s health information from being shared without their knowledge or consent.   

HIPAA is very limited in scope. It only applies to specific health-related covered agencies, such as health care providers, health care plans, and health care clearing houses. Therefore, employers, restaurants, theaters, airlines, or stores are not part of HIPAA’s covered agencies. Consequently, if one of these groups asks you if you are vaccinated or for proof of vaccination, they are not in violation of HIPAA. You can choose to give them that information or not.   

However, if your doctor gives your vaccination status to another entity without your authorization, they are in violation of HIPAA. Again, HIPAA applies only to health care providers and those involved in maintaining your health records.  

If you believe your health care providers are not protecting your confidential medical information, you can file a complaint with the Office of Civil Rights within the U.S. Department of Health and Human Services. 

Employers 

Employers are not a covered entity under the HIPAA law. Because of this, they can ask about or require proof of your vaccination status. Once an employer receives such information, they are required to keep it confidential. See guidance from the U.S. Equal Employment Opportunity Commission (EEOC). 

If you believe that your employer has failed to keep your vaccine status confidential or to protect your medical information, they may be in violation of federal or state law. McOmber McOmber & Luber, P.C. has experienced lawyers to help you. 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 973-878-9040.

National Whistleblower Day occurs on July 30 to commemorate the passing of the first whistleblower law on July 30, 1778. The Continental Congress passed the first law after ten navy members reported their Continental Navy Superior Officer’s wrongdoing. However, this day also recognizes all of the whistleblowers who took action after that day.

Whistleblowing is an important component of employment law because it helps protect employees from discrimination and poor working conditions. Further, a whistleblower receives legal protections for bringing these injustices to light. This holiday aims to commemorate the brave actions of whistleblowers who bring the injustice of employers to light. But also this day offers the opportunity to change the narrative around whistleblowing. This day celebrates the employees who challenged employer wrongdoing and highlights the benefits of whistleblowing for employees. Additionally, by choosing to celebrate this occasion, it sends the message that the culture of retaliation around whistleblowers needs to change.

Join the National Whistleblower Center as they celebrate this event with an all-day virtual event. Further, if you raised awareness of an issue with your employer and faced retaliation in the form of termination, demotion, or harassment you can pursue legal action.

If you are a whistleblower and need assistance after raising awareness about wrongdoing, we can help. At McOmber McOmber & Luber, we take a proactive approach to each and every legal issue our clients face. Call our Red Bank office at 732-842-6500, our Marlton office at 856-985-9800, or contact us at 888-396-0736 or online for a free consultation.

Having a new child through adoption, childbirth, foster care, or surrogacy is an exciting time for a new parent. However, there is a lack of support for parental leave in the United States. The only federal legislation requiring employers to provide leave to care for a newborn or newly adopted child is the Family and Medical Leave Act (FMLA). However, this legislation does not protect all new parents and only entitles those protected to unpaid leave.

The FMLA applies to employees at public agencies, public and private elementary and secondary schools, and companies with 50 or more employees. However, the employee is only eligible for leave if he or she meets certain conditions. The employee must work for their employer for 12 months or 1,250 hours over the last 12 months. Additionally, the employee must work at a location with 50 or more employees within 75 miles. While these restrictions limit who has access to parental leave, it does provide leave for a variety of parents. It protects mothers and fathers of newborn children, mothers and fathers of newly adopted children, and new foster parents. Additionally, surrogates and newly intended parents qualify for FMLA leave as well.

Therefore, the lack of paid parental leave protection makes individuals dependent upon their employer’s parental leave policy. However, there is a cultural shift underway demanding paid parental leave. States, such as New Jersey, California, Rhode Island, New York, and Washington as well as Washington D.C. currently have paid parental leave programs.

New Jersey Paid Family Leave

New Jersey Family Leave Insurance provides New Jersey workers cash benefits for time off to bond with their newborn child. This includes fathers, partners, and mothers of adoptive, foster, and biological children. The State’s family leave program covers most New Jersey workers. But some employers provide Family Leave Insurance through private insurance carriers. To qualify for Family Leave Insurance employees must pay into the program throughout employment and meet minimum gross earnings requirements. However, federal employees, out-of-state employees, and contractors are not covered by the program.

Due to the lack of federal legislation, a parent’s leave can be dependent on the individual employer or state legislation. This can create a confusing and inconsistent system for new parents to navigate while trying to maintain their employment and adjusting to their new family responsibility.

If you feel that you were wrongly denied parental leave or need help understanding your parental leave protections, we can help. At McOmber McOmber & Luber, we take a proactive approach to each and every legal issue our clients face. Call our Red Bank office at 732-842-6500, our Marlton office at 856-985-9800, or contact us at 888-396-0736 or online for a free consultation.

The Equal Employment Opportunity Commission (“EEOC”) does not permit retaliation from employers. Therefore, the EEOC protects employees and applicants from facing negative consequences for reporting harassment or discrimination. This EEOC protection extends to reporting a coworker for harassment or discriminatory behavior.

What is retaliation?

Retaliation occurs when an employer or manager takes a materially adverse action against an employee after the employee takes a protected action in the face of discrimination or harassment. This discrimination or harassment can be from a coworker, the employer, a manager, or a customer.

What types of activities are retaliation?

Retaliation includes firing, demoting, or harassing an individual who takes a protected action. However, there are other activities that could be considered based on the context of an individual’s case. Therefore, the following situations could also be considered retaliation if taken after an employee takes a protected action:

  • Transferring an employee to a less desirable position
  • Increasing scrutiny of the employee
  • Giving a performance evaluation that is lower than it should be
  • Reprimanding the employee
  • Threatening to make or actually making reports to the police or other authorities
  • Making the person’s work more difficult such as by changing an employee’s work schedule to conflict with known responsibilities.

What types of activities are protected from retaliation?

Generally, protection extends to participating in an EEOC process or reasonably opposing unlawful conduct. But protected action can take many different forms. Consequently, it is also unlawful for an employer to retaliate against an employee for taking one of the following actions:

  • Filing an EEOC charge, complaint, investigation, or lawsuit
  • Participating as a witness in an EEOC charge, complain, investigation, or lawsuit
  • Communicating with a supervisor or manager about discrimination or harassment
  • Refusing to follow orders that would cause discrimination
  • Requesting accommodations for a disability or religious belief
  • Rebuffing sexual advances or intervening to protect others
  • Asking managers or coworkers about salary information

Therefore, while all of these activities can be considered protected actions the context of a situation may allow for other activities to be included under the protected umbrella as well.

How can companies help prevent retaliation after reporting coworkers?

The EEOC emphasizes that employers must consider the psychological and organizational characteristics that can contribute to the likelihood of retaliation. Additionally, the EEOC finds that factors such as a manager’s psychological traits, perceptions of the organization’s culture, and organizational opportunities can determine the likelihood of retaliation. Psychological factors that may indicate a likelihood of retaliation include the severity of the accusation, the impact of the accusation on an individual’s other work relationships, and the ability of the accusation to harm employability. However, organizational structures also must be considered. The EEOC indicates structures that lack administrative policies discouraging retaliation, authoritarian management culture, excessively hierarchical organizations, reward systems that promote competition, and the capacity to isolate the accuser are more likely to have retaliation issues.

How can an individual prove a retaliation claim?

To prove an employee took a materially adverse action and thus retaliated because of a protected action an employee must show three things. Initially, the employee must show he or she engaged in a prior protected activity. Subsequently, the employee must show that the employer took a materially adverse action. Finally, the employee must show that retaliation caused the employer’s activity.

If you think you faced retaliation after reporting a coworker’s harassing or discriminatory actions, we can help. Further, we have extensive experience handling retaliation and whistleblower claims. At McOmber McOmber & Luber, we take a proactive approach to each and every legal issue our clients face. Call our Red Bank office at 732-842-6500, our Marlton office at 856-985-9800, or contact us at 888-396-0736 or online for a free consultation.

The Equal Employment Opportunity Commission (“EEOC”) seemingly says no, employers cannot rescind job offers due to sudden disability.

The EEOC filed a suit in New Jersey’s Federal Court in February challenging Saint Clare Hospital’s decision to rescind Taylor McKay’s offer of employment. Saint Clare’s rescinded McKay’s offer after she suffered from a sudden disability. McKay informed Human Resources five days before her start date that she suffered from preeclampsia and her labor was induced. Preeclampsia is a pregnancy condition affecting which causes high blood pressure thus increasing the risk to internal organs. McKay asked for a reasonable accommodation to delay her start date by several weeks. However, Human Resources called to inform McKay that Saint Clare’s revoked her offer of employment.

The EEOC challenges that St. Clare’s violated the Americans with Disabilities Act (“ADA”). This matter is still before the court and not yet resolved. However, the choice of the EEOC to bring the suit forward indicates the Agency’s support for employees.

How did this violate the ADA?

The ADA which protects an employee who has a disability and is qualified to do the job. The decision to rescind McKay’s offer violated the ADA for two reasons. First, Saint Clare’s took action based on McKay’s disability. Second, the employer failed to engage with McKay to provide a reasonable accommodation. Both of these actions violate the ADA because an employer cannot act on basis of a disability and is required to provide a reasonable accommodation unless there is an undue hardship.

What does reasonable accommodation require?

A reasonable accommodation is any adjustment to a work environment or job that allows an individual with a disability to perform the essential functions of the job. This can include modified work schedules, reassignment to vacant positions, or adjustments to training materials. Employers are required to provide reasonable accommodations unless providing the accommodation causes an undue hardship. An undue hardship occurs when providing the accommodation would be significantly difficult or expensive.

Further, the employer is not required to provide the accommodation requested by the employee. However, even if a specific accommodation causes an undue hardship that does not mean the employer is off the hook. The employer is still responsible for providing another reasonable accommodation if possible.

The EEOC argues that Saint Clare’s failed to adequately engage in the reasonable accommodation process. This is because the hospital chose to rescind the offer instead of working with McKay to provide a reasonable accommodation. Even if the delayed start date presented an undue hardship, the failure to discuss other reasonable accommodations presents grounds for an ADA violation.

Does the ADA cover pregnancy as a condition?

No, pregnancy alone does not activate the ADA protections. But when other complications arise such as preeclampsia or gestational diabetes then the pregnant individual falls within the ADA. This entitles the individual to all of the protections including a duty of reasonable accommodation. The EEOC indicates that Human Resource’s failure to consider McKay’s delayed start date and decision to rescind her offer violated the ADA’s process.

If an employer rescinded your job offer when you experienced a disability, we can help. At McOmber McOmber & Luber, we take a proactive approach to each and every legal issue our clients face. Call our Red Bank office at 732-842-6500, our Marlton office at 856-985-9800, or contact us at 888-396-0736 or online for a free consultation.

There is nothing more exciting and hopeful than bringing a new baby into the world. However, sometimes these feelings of unconditional love and joy can be overshadowed by worries over finances and job security. If you just had a baby and are concerned about losing wages while on maternity or paternity leave, here is what you need to know.   

Does New Jersey Have Paid Maternity Leave? 

Yes. New Jersey’s Family Leave Insurance program (NJFLI) provides New Jersey workers 12 weeks of partially paid monetary benefits to bond with your newborn, adopted or foster child. Spouses who work in New Jersey and take paternity leave, can also receive benefits. 

To qualify for family leave, you must have worked 20 weeks earning at least $200 a week or have earned a combined total of $11,000 in four quarters (the base year). The base year is 52 weeks and is determined by the date you apply for NJFLI. To determine if you meet the minimum earnings requirements, go to www.myleavebenefits.nj.gov. 

Under New Jersey law, if your employer offers its own paid leave plan, the benefits must be equal to or better than the state plan. You are not allowed to collect maternity/paternity leave benefits from both your employer and the state. 

Certain classes of employees are ineligible for benefits. This includes federal government employees, out of state employees or workers that are not technically employees, such as contractors.  

How Much Will I Receive on Maternity/Paternity Leave? 

New Jersey’s Department of Labor and Workplace Development is responsible for calculating your payments during your leave. Generally, you are paid 85% of your average weekly wages. For 2021, the maximum weekly benefit rate is $903 per week.   

Can I Receive Benefits If I Took Leave Before I Had My Baby?  

If you had to miss work before you gave birth due to a pregnancy complication, you may be eligible to receive payments through New Jersey’s Temporary Disability Insurance (TDI) program. To receive TDI payments, your healthcare provider must certify you were unable to do your job due to medical complications.   

TDI benefits are usually payable up to four weeks before the expected due date and an additional six weeks afterward (or 8 weeks in the case of a c-section). You can receive TDI over a longer period if you suffer from pregnancy or post-partum complications. Your medical provider must certify that your disabling postpartum complications are keeping you from returning to work. 

Although you might qualify for both NJFLI and TDI, you cannot collect benefits from both programs simultaneously. So, if you suffered pregnancy complications that continued after you gave birth, but you maxed out your TDI payments, you may still be eligible to receive FLI benefits.    

Can My Employer Terminate Me While I am Out on Maternity Leave? 

No. The New Jersey Family Leave Act (NJFLA) requires all large companies (those with 30 or more employees) to provide employees with 12 weeks of job protected leave during any 24-month period. This protected leave is available to employees who were employees for at least a year. The leave can be for bonding with a newborn, adopted or foster care child. It can also be to provide care for a seriously ill or injured loved one. Prior to taking the leave, you need to provide notice to your employer which varies based on the reason. For a newborn, adopted, or foster care child, you need to give your employer at least 30 days’ notice.   

While you are out on leave, you are entitled to receive your employer’s health insurance benefits. You cannot collect unemployment insurance or workers compensations benefits.  

When you return to work, your employer is required to return you to the same position that you had prior to your leave. In addition, your employer is prohibited from retaliating against you for taking the leave. 

Do you believe you have been denied wages while out on maternity leave or you have been retaliated against for taking leave? Your employer may be violating state and/or federal law. McOmber McOmber & Luber, P.C. has experienced lawyers who handle these cases and is happy to help you. To find out more, call our office in Red Bank, New Jersey at 732-842-6500, our Marlton, New Jersey office at 856-985-9800, OR contact us at 888-396-0736 or online for a free consultation.

Even before the pandemic, overworked, underpaid Americans had begun to raise concerns about the plight of the independent contractor. These complaints reached fever pitch just before the work-from-home orders went into effect in the early spring of 2020. Entrepreneurship websites make the gig economy sound glamorous. In reality, the difference between gig work and full-time employment has more to do with employers cheating the system than with scrappy, self-employed workers disrupting it. By classifying workers as independent contractors instead of employees, employers can cut their own costs by not paying for health insurance benefits, paid leave, and workers’ compensation. To add insult to injury, independent contractors are responsible for paying their own Medicare and Social Security taxes, so that they end up paying nearly a third of their 1099 income to the IRS at tax time. The good news is that New Jersey Governor Phil Murphy has signed into law four bills aimed at protecting workers from unlawful misclassification. If you have questions about unlawful misclassification, contact a Red Bank employment classification lawyer.

Unlawful Misclassification of Employment in New Jersey

On July 8, Gov. Murphy signed into law a legislative package made up of four bills related to the detection and prevention of unlawful misclassification of workers and remedies for workers whose employment has been misclassified. Unlawful misclassification of workers usually takes the form of employers categorizing workers as independent contractors instead of employees. Doing this is a cost-saving measure for employers because by doing it, they can avoid paying health benefits, overtime pay, and some types of taxes. Meanwhile, it is manifestly unfair to workers, who are stuck with the financial burden that their employers avoid by misclassifying them.

The new legislation will create a new Department of Labor Office, called the Office of Strategic Enforcement and Compliance, as well as a database for tracking payroll. It will also make it easier to identify misclassified workers and to impose stop-work orders at workplaces where workers are unlawfully being denied the rights of employees.

An audit conducted in 2018 determined that unlawful misclassification of employment is a widespread problem in New Jersey. After examining only 1% of the businesses in the state, the audit found 12,3000 misclassified workers, $460 million in underreported wages, and $14 million in lost revenue for the state unemployment and temporary disability funds. The new legislation will make it easier to enforce the rules about classifying full-time workers as employees, with all the rights and tax regulations that entails. The authors of the bills included in the new legislation package are Verrelli, Madden, Greenstein, Egan, Karabinchak, Space, Oroho, Sumter, Lagana, Freiman, and Singleton.

Contact an Employment Lawyer About Unlawful Misclassification

Your employment lawyer is committed to protecting your rights as an employee; the law does not permit your employer to deny you benefits by pretending that you are an independent contractor. Contact McOmber McOmber & Luber in Red Bank, New Jersey to discuss your case. Please call our Red Bank office at 732-842-6500, our Marlton office at 856-985-9800, OR contact us at 888-396-0736 or online for a free consultation. We represent all clients in Middletown, Cherry Hill, and throughout New Jersey.

The restaurant industry has more sexual harassment claims than any other sector in the United States. This could be due to several factors including the customer is always right culture and the disproportionate number of men in management positions. A waitress is also less likely to report harassment because of the customer driven pay scale.

Can an employer be liable if a waitress is harassed by a customer?

Employers can be held liable for sexual harassment when a customer harasses a waitress. For example, in Lockhard v. Pizza Hut, when a manager failed to take action after an employee filed complaint against a customer. The manager ignored the existing corporate policy to tell the customer to stop harassing the waitress or other employee. If the customer continues to harass the waitress, the employer must inform the customer to leave.

What is sexual harassment?

An employer is responsible for protecting employees from sexual harassment. Sexual harassment includes both sexual advances and unwanted discrimination or comments on the basis of gender. The harasser can be the victim’s supervisor, supervisor of another area, co-worker, or clients or customers.

How to file a harassment claim?

The waitress should look to the company sexual harassment policy and file with the appropriate complaint. When investigating allegations of sexual harassment the EEOC looks to the entire record. This includes: the circumstances, such as nature of sexual advances, and the context in which the alleged incidents happened. The court considers the specific facts and circumstances of each allegation on a case-by-case basis.

If you are a waitress or other restaurant employee who has faced sexual harassment at work the New Jersey sexual harassment lawyers at McOmber McOmber & Luber, P.C. can help you. Please call our Red Bank office at 732-842-6500, our Marlton office at 856-985-9800, OR contact us at 888-396-0736 or online for a free consultation. We represent all clients in Middletown, Cherry Hill, and throughout New Jersey.

The Supreme Court established last year in Bostock v. Clayton, County Georgia, that discrimination because an employee is gay or transgender violates Title VII. This violation stems from the fact that discrimination on one of those bases is discrimination “because of sex.” Therefore, employers cannot discriminate against members of the LGBTQ+ community. To best fight discrimination in the workplace, it is necessary to create an inclusive environment.

Best Practices

Now is the time to make adjustments to employment policies to ensure an inclusive environment. Here are suggestions for how to update policies and procedures to protect LGBTQ+ employees.

  • First, review existing harassment, discrimination, and equal employment opportunity documents and update if necessary to ensure they encompass protections for LGBTQ+ individuals when considering “sex” as the motivating characteristic.
  • Second, consider the impact of other policies that are not as clearly linked to discrimination on LGBTQ+ employees including dress code and healthcare practices.
  • Third, reevaluate the application process with inclusion in mind. For example, ensure all gender identities are represented if asking applicants to select a gender.
  • Fourth, consider current complaint protocols. There should be multiple avenues to report issues that employees experience. This will allow an employee to confide in a trusted individual increasing reporting so employers can fix the issue in a timely fashion.
  • Fifth, enact interactive training to allow employees to understand the new policies more inclusive of LGBTQ+ employees and rebut any existing prejudices employees possess.

Remaining Considerations

Despite this step forward for equality, there are still a few questions remaining. First, it is not clear how the Bostock decision’s protections for LGBTQ+ individuals impacts religious freedoms. Religious employers are subject to limited Title VII requirements because of constitutional and the Religious Freedom Restoration Act (“RFRA”) exemptions. Therefore, it is not clear what the interplay is between Bostock LGBTQ+ protections and existing religious exemptions. Additionally, the Court did not make a ruling on the provision of separate bathrooms and locker rooms for gender. This could be an important part of inclusion for transgender employees and education for all employees.

If you faced harassment or lost your job because of your sexual orientation, we can help. At McOmber McOmber & Luber, we take a proactive approach to each and every legal issue our clients face. Call our Red Bank office at 732-842-6500, our Marlton office at 856-985-9800, or contact us at 888-396-0736 or online for a free consultation.

This month McOmber McOmber & Luber, P.C. celebrates Pride Month, a time to recognize the struggle of the LGBTQ+ community to overcome prejudice and discrimination. We acknowledge those who fought, and continue to fight, for full equality. While the LGBTQ+ community has come a long way to achieving full civil rights and equal treatment, there is still much work to be done. There are many organizations who support the LGBTQ+ community and this month we are proud to highlight the National LGBT Bar Association. 

What is the National LGBT Bar Association? 

The National LGBT Bar Association (“LGBT Bar”) is a group of lawyers, judges, activists and affiliated gay, lesbian bisexual and transgender organizations that was created to promote “justice in and through the legal profession for the LGBTQ+ community in all its diversity.” 

The LGBT Bar was formally introduced at the Lesbian & Gay March on Washington in 1987. In 1992, the Association became an official affiliate of the American Bar Association (ABA) and began working with the ABA’s Section on Individual Rights and Responsibilities and the ABA’s Committee on Sexual Orientation and Gender Identity. 

What does the LGBT Bar do? 

The LGBT Bar provides much needed support to its members in a variety of ways. For example, it assists prospective LGBTQ+ judicial candidates to become judges, ensures law schools employ best practices to make LGBTQ+ students feel safe on campus, and hosts the annual Lavender Law Conference, the largest LGBTQ+ legal conference in the country.   

The LGBT Bar also advocates for issues important to the LGBTQ+ community. Right now, the Association is working to pass the Juror Non-Discrimination Act of 2021 that would prevent discrimination in jury selection based on sexual orientation or gender identity. The LGBT Bar is also leading the effort to ban LGBTQ+ “panic” defenses which is a legal strategy that asks a jury to find that a victim’s sexual orientation or gender identity/expression is to blame for a defendant’s violent reaction.   

The LGBT Bar does not give legal advice or recommend attorneys to individuals but refers them to Lambda Legal. Lambda Legal is a national organization whose primary mission is “the full recognition of civil rights of lesbians, gay men, bisexuals, transgender people, and everyone living with HIV.”  According to the organization, Lambda Legal only accepts “impact cases” meaning those cases the organization believes will have the greatest impact “in protecting and advancing the rights of LGBTQ+ people and those with HIV.”   

I believe my employer discriminated against me. Who can I call for help? 

If you believe you have been discriminated against due to your LGBTQ+ status or you are suffering in a hostile work environment, you should consult with an attorney as soon as possible. It is important that you look for a place that has experienced lawyers who specifically handle employment discrimination cases.  An experienced and qualified lawyer can advise you of your legal rights and provide you with a strategy to achieve your goals. 

For nearly 50 years, McOmber McOmber & Luber, P.C. has represented individuals in discrimination, harassment, and retaliation cases against their employers. Our employment lawyers advocate for the rights of the LGBTQ+ community as well as other protected classes of victims.  

If you have been denied a promotion, demoted, given reduced hours, disciplined for no reason, harassed, or taunted by your coworkers, terminated unfairly or more, you may have a claim of discrimination under federal and state laws.  

What laws protect me from LGBTQ+ discrimination in the workplace?  

Thanks to the U.S. Supreme Court’s recent decision in Bostock v. Clayton County, Georgia, employers are prohibited from terminating employees because they are gay or transgender. The Court held that the language “on the basis of sex” in Title VII of the Civil Rights Act of 1964 banned discrimination of gay and transgender persons. Prior to this ruling, the “basis of sex” language was interpreted to focus solely on gender, meaning male or female. 

While this was a groundbreaking ruling, it only applies to discrimination claims in the employment context. That is why LGBTQ+ advocates are seeking passage of the Equality Act, that amends several federal civil rights laws to explicitly include sexual orientation and gender identity as protected characteristics in all areas of life including education, housing, and healthcare. 

New Jersey Law 

In addition to federal law, if you work in New Jersey, the Law Against Discrimination (LAD) offers broad protection from workplace discrimination based on sex, gender identity or expression, and sexual orientation.   

Employers cannot discriminate against you based on your LGBTQ+ identity in the following areas: 

  1. Recruitment: job postings, interviews, hiring 
  1. Promotions 
  1. Terminations 
  1. Compensation 
  1. All terms and conditions of employment 

Often an employer or supervisor may try to disguise their actions against you as a legitimate business decision. Experienced legal counsel recognizes this tactic as “pretext,” meaning that was not the employer’s true motive. It is up to the employee to prove pretext which is why it is important to obtain qualified legal counsel. 

Do these laws also protect me from being harassed on the job?  

Yes. Just as the LAD prohibits an employer from discriminating against protected groups in the workplace, it also prohibits employers from creating hostile work environments. If you believe your employer, supervisor or coworker is harassing you because of your LGBTQ+ status, and it is severe or pervasive, they are likely violating the LAD and you should report the conduct immediately.  

Employers have an obligation to take all complaints seriously and to remediate all forms of harassment and discrimination. Responsible employers should also have a skilled, neutral investigator conduct a thorough investigation as soon as a complaint is lodged. 

I am concerned that I will be fired or retaliated against for submitting a complaint about mistreatment. 

While it is completely understandable to be concerned about how your employer will treat you once you complain, the LAD prohibits them from retaliating against you.  N.J.S.A. 10:5-12(d). Therefore, if you speak to a supervisor, human resources representative or a state or federal agency about your discrimination or harassment concerns, you are likely protected.  If your employer terminates, disciplines, or takes other adverse actions against you after raising a complaint, you may have a retaliation cause of action. 

Discrimination and harassment in the workplace are unlawful and should not be tolerated. If you are experiencing this conduct, you could be eligible for back pay and other damages.  McOmber McOmber & Luber, P.C. has years of experience fighting these claims and are here to help. You can reach us at our Red Bank, New Jersey office at 732-842-6500 or at our office in Marlton, New Jersey 856-985-9800. 

Interviewing for a job can be an exciting experience. Applicants are usually willing to share a lot of information in the hopes of acquiring the job. However, this does not mean that an employer can ask you any question they want and require a response. This may be a form of discrimination. The Equal Employment Opportunity Commission (“EEOC”) created standards to guide what questions employers can ask and what questions constitute discrimination.

Guidelines

The EEOC aims to ensure that the intent behind the question and how the employer uses the response are job-related. Therefore, when questioning whether an inquiry could be considered discrimination, ask if it is job-related. This means that the question evaluates the applicant’s qualifications, skills, or overall competence for the job.

Further, state and federal equal employment laws prohibit the use of pre-employment inquiries that tend to remove members from the applicant pool based on a protected characteristic such as gender or race. The pre-screening questions must seek to determine qualifications, not serve as a method for discrimination.

Discriminatory Questions

There are a number of characteristics that an employer should not or cannot ask about when making hiring decisions. These characteristics include: race, height and weight, disability, marital status, religion, or specifics of finances. The EEOC recommends that employers avoid the following types of questions:

  • Questions about race, religion, and ethnicity, examples include:
    • Are you biracial?
    • Which church do you attend?
    • What language(s) do you speak at home?
    • What is your native language?
    • Do you practice a specific religion?
    • What is your national origin?
    • Where are your parents from?
  • Questions about age, unless the employer needs to verify that applicants meet age-related legal requirements for the job.
  • Questions about an applicant’s pregnancy or plans to start a family, such as:
    • Are you pregnant?
    • Do you plan to have children within the next year?
    • How many children do you have?
    • What are your child care arrangements?
  • Questions about military or financial records. This includes questions such as:
    • What type of discharge did you receive?
    • Have you ever declared bankruptcy?
    • Do you own your home?

Prohibitions on Questions Concerning Medical Information

To prevent discrimination, the EEOC also prohibits employers from asking questions about genetic information or disability, especially in a pre-offer setting. The applicable rules change after an employer makes an offer and the rules are generally more permissive towards obtaining medical information about the employee. However, prior to an offer, employers cannot ask about an applicant’s disability or questions likely to reveal a disability, these questions include:

  • Do you have a disability?
  • What medications are you currently taking?
  • Have you filed any workers’ compensation claims?
  • Have you ever been injured on the job?

Additionally, an employer cannot ask questions about an employee’s genetic information. The types of questions prohibited include:

  • Have any of your close relatives had a heart attack or been diagnosed with a heart condition?
  • Do mental health conditions such as bipolar disorder, depression or schizophrenia run in your family?
  • Have you had genetic tests to determine whether you are at risk for cancer?

Limited Allowances

Despite these prohibitions, it might be necessary for the employer to know some variation of this information. For example, while an employer asking about height or weight may indicate discrimination, the employer can ask about an employee’s ability to lift heavy objects.

Additionally, an employer may ask an applicant if he will need a reasonable accommodation for a disability during the application process or on the job in certain situations. These situations include if the applicant possesses a disability which is obvious or previously disclosed. The employer can then ask if the applicant will need a change to the application process or work environment. Further, the employer may ask an applicant to voluntarily report for affirmative actions purposes. The employer may also ask the applicant to describe or demonstrate how she would perform certain tasks, without directly asking about a disability.

If you are uncomfortable by questions asked during the interview and suspect an employer did not hire you due to discrimination, we can help. At McOmber McOmber & Luber, we take a proactive approach to each and every legal issue our clients face. Call our Red Bank office at 732-842-6500, our Marlton office at 856-985-9800, or contact us at 888-396-0736 or online for a free consultation.

Some may be familiar with the ongoing concern about an employer forcing employees to get the vaccine. However, a Florida Elementary School presented the opposite question: is it possible to get fired for being vaccinated? Seemingly these issues are closely related.

Do any laws protect employees against an employer vaccine ban?

It is likely that the American Disabilities Act (“ADA”) prevents an employer from successfully banning employees from receiving the vaccine. The ban likely violates the ADA because it interferes with the right to access medical treatment. This is particularly harmful for employees who are at a higher risk of COVID-19 because of an existing disease. One lawyer responding to the Florida school vaccination ban stated the ban was akin to preventing an individual with cancer from getting chemotherapy. A ban on vaccinations prevents individuals from making the best decision that meets their individual health needs.

Additionally, in New Jersey, the Conscientious Employee Protection Act (“CEPA”) can protect employees as well. CEPA prevents employers from retaliating against employees who object or refuse to participate in an activity, practice, or policy that is incompatible with a clear mandate of public policy concerning public health. The U.S. Government Policy as well as New Jersey state policy both condone and encourage getting the vaccine when possible.

How does the ADA address the vaccine?

The ADA COVID-19 Guidance addresses how company policies can require or encourage the vaccine. But the FAQ also states that the employer must offer reasonable accommodations for those who cannot receive the vaccine due to disability, religious belief, or pregnancy.

The information about an employee’s COVID-19 vaccination is confidential medical information under the ADA. This requires an employer to keep the employee’s medical information, including documentation or confirmation of COVID-19 vaccine, confidential. The vast majority of guidance provided by the ADA discusses how employees can require the vaccine. There is little guidance about those who face opposition due to receiving the vaccine.

If you faced harassment or lost your job because you received the vaccine, we can help. At McOmber McOmber & Luber, we take a proactive approach to each and every legal issue our clients face. Call our Red Bank office at 732-842-6500, our Marlton office at 856-985-9800, or contact us at 888-396-0736 or online for a free consultation.

Workers can get time and a half pay for every hour they work beyond the 40th hour in a seven-day period. However, this is only part of the story. Almost everyone works more than 40 hours per week, and only some people ever get paid the overtime rate. Whether or not you get the overtime pay rate depends on the nature of your work and on your payment arrangement, among other factors. If you are not getting overtime pay, it might be because your job is in an exempt category. It might also be because you qualify for overtime pay, but your employer is using twisted logic to avoid paying it to you. In this case, you should contact a New Jersey employment lawyer.

Overtime Pay Eligibility in New Jersey

According to the Fair Labor Standards Act, your employer must pay you 1.5 times your hourly wage for every hour you work beyond 40 hours in a week (defined as seven consecutive days). As of 2021, the minimum wage is $12 per hour, which means that you will get a minimum of $18 for each overtime hour you work. Most employees who get paid an hourly rate, as opposed to a monthly or annual salary, are eligible for overtime pay. The law explicitly states that cashiers, construction workers, factory workers, firefighters, paramedics are eligible. Meanwhile, agriculture and livestock workers, hotel workers, and bus and limousine drivers are not eligible. Domestic workers such as housekeepers and nannies are eligible for overtime pay unless they are employed on a live-in basis, with the employer providing lodging.

Is Your Job Too Cushy for Overtime?

The gist of the law is that manual work is eligible for overtime pay, but work that is mostly intellectual is not, since the latter category of jobs usually have higher pay. For example, managers and administrators do not get overtime. Of course, everyone who has worked as a restaurant or retail manager knows that these jobs involve upwards of 10,000 steps per day and plenty of heavy lifting. In some jobs, managers are responsible for filling in for all tasks when the store is short-staffed. Therefore, retail managers can get overtime pay if they spend more than 40% of their work time on non-management duties, such as stocking shelves or working the cash register. Other managers are eligible if they spend at least 20% of their time on non-management tasks, such as if a restaurant manager spends part of her shift waiting tables, washing dishes, cooking, or tending bar.

Are You Really an Independent Contractor, or is it Just an Excuse Not to Pay You More?

One tactic that employers use to avoid paying overtime, as well as to save money on taxes and to get out of providing insurance for workers, is to classify as many workers as possible as independent contractors. Employees can get overtime pay, but independent contractors cannot. If your employer has misclassified you as an independent contractor, contact an employment lawyer.

Do Not Let Your Employer Shortchange You Out of Overtime Pay

If you are working overtime, you deserve to get paid the overtime rate. McOmber McOmber & Luber, P.C.’s wage and hour attorneys can help. You can reach us at our Red Bank, New Jersey office at 732-842-6500 or at our office in Marlton, New Jersey 856-985-9800. 

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