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McOmber McOmber & Luber

Business & Employment Lawyers Red Bank & Marlton New Jersey

(732) 842-6500

Red Bank Legal

Approximately a decade after its initial debut, the bipartisan Pregnant Workers Fairness Act is on the verge of becoming federal law.

It first made it through the House of Representatives in 2020, where it was passed by an impressive vote of 329-73, but failed to make headway in the Senate. Then, in 2021, a revamped version of the act made its way back to the House of Representatives, where it was successfully passed by yet another landslide vote of 315-101, further exemplifying the bill’s widespread support.

Now, in 2022, the Pregnant Workers Fairness Act faces off with the Senate once again, and lawmakers believe that this may finally be the year it becomes law.

According to Sen. Bob Casey, D-Pa., “this is a bill whose time has come, and we’re ready to get it done.”

What Is The Pregnant Workers Fairness Act?

First introduced in 2012, the “Pregnant Workers Fairness Act” (PWFA) was designed to ensure the proper treatment of pregnant job applicants and workers by prohibiting “employment practices that discriminate against making reasonable accommodations for qualified employees affected by pregnancy, childbirth, or related medical conditions” by businesses with 15 or more employees.

As specified by the bill, “unlawful employment practices” are as follows:

  • Failing to make reasonable accommodations to known limitations of such employees unless the accommodation would impose an undue hardship on an entity’s business operation.
  • Requiring a qualified employee affected by such conditions to accept an accommodation other than any reasonable accommodation arrived at through an interactive process.
  • Denying employment opportunities based on the need of the entity to make such reasonable accommodations to a qualified employee.
  • Requiring such employees to take paid or unpaid leave if another reasonable accommodation can be provided.
  • Taking adverse actions in terms, conditions, or privileges of employment against a qualified employee requesting or using such reasonable accommodations.

In addition to ensuring reasonable accommodations and enforcing the above protections, the bill also serves another purpose: if passed, it will unify the standard for fighting pregnancy discrimination across the country.

While multiple states have passed versions of this bill or other, similarly focused legislature, these laws are a patchwork of inconsistencies and variations that lack overall cohesion or adherence to a universal standard. If PWFA is passed in the Senate, there will be a single, unifying standard for the protections and support offered to pregnant employees, and prospective pregnant employees, all across the country, regardless of what state they live in.

Find Experienced Pregnancy Discrimination Lawyers at McOmber McOmber & Luber

Pregnancy discrimination remains an ongoing problem, even in 2022.

If you have experienced pregnancy discrimination, or any other kind of employment discrimination, contact McOmber McOmber & Luber today. Our experienced discrimination lawyers will discuss the details of your case with you and fight for your rights.

With offices in Red Bank, Marlton, and Newark, New Jersey, we represent clients across the state. Contact McOmber McOmber & Luber to speak with one of our pregnancy discrimination lawyers today.

Generally, your employer cannot pay you less than minimum wage. However, there are some exceptions that you should be aware of to ensure your employer is paying you properly.

Exceptions

Employees who are exempt from the minimum wage rates include:

  • Full-time students
  • Outside salespersons
  • Motor Vehicle salespersons
  • Part-time child care employees who primarily work in the home of their employers
  • Minors under 18 unless they are working in hotels, restaurants, retail, laundry, cleaning, beauty, light manufacturing, farming, or apparel occupations
  • Individuals who work at summer camps, conferences, or retreats during June, July, August, and September which are organized by non-profit religious organizations or associations
  • Some workers with disabilities because some employers with approved certificates can pay a subminimum wage to those with a disability that diminishes their earning capacity

Additionally, Employers have an additional consideration if there business employs tipped employees. If the total earnings of the employee calculated by adding the hourly wage and tips earned is less than the minimum hourly wage, then the employer has to provide the necessary additional funds to equalize the employee’s pay so he or she makes the minimum wage per hour.

New Jersey Minimum Wage

Governor Phil Murphy established a minimum wage law for the state of New Jersey. The current rate as of January 1, 2022, is $13. The goal of the legislation is to establish a $15 minimum hourly pay by 2024. However, small businesses(those with fewer than six employees), seasonal businesses, and farm labor companies are subject to the increase at a slower rate.

Get Help If Your Employer Is Not Paying You Properly

If your employer is paying you less than minimum wage and is not subject to one of the exceptions above, you should contact an attorney to discuss what actions you can take. Our New Jersey Employment lawyers at McOmber McOmber & Luber, P.C.  can help ensure that you receive your proper payment. 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 find out more.

It is no secret that the cost of living in New Jersey is among the highest in the nation. This reality is even more difficult for working parents raising young children and paying skyrocketing childcare costs.  

Recognizing this struggle and the ongoing financial challenges brought on by the pandemic, Governor Murphy signed legislation on Friday, December third, to help support working families and women who have been forced to leave the workforce in record numbers.   

How New Jersey’s Expanded Child and Dependent Care Tax Credit works:  

If your family income is less than $150,000/year, you can apply for an expanded tax credit for childcare expenses you incurred in 2021. This is more than double the previous income eligibility level that only applied to those making less than $60,000/year.   

The law also eliminates the $500 cap for employment-related expenses for one child and the $1,000 cap for employment-related expenses for two or more dependents. Since this new law is based off the federal law, the amount of the New Jersey credit is a percentage of your federal child and dependent care credit.  

Lastly, if your childcare expenses exceed your tax liability for fiscal year 2021, you will receive a refund for the remaining funds.   

Childcare and Working During the Pandemic

This new law is among several recent federal and state laws that have attempted to help working families during the pandemic who are struggling to pay for childcare. According to a Care.com national survey of 3,000 parents, 94% of parents said they had to cut back on childcare expenses by reducing their hours at work, changing jobs or leaving the workforce. 85% of the families said they are spending 10% or more of their household income on childcare. This large increase is due to the substantial health and safety measures that childcare centers had to employ as a result of the pandemic. 

We Are Here to Help

The pandemic has been tough on working families and especially women who have been forced to leave the workforce in record numbers. McOmber McOmber & Luber, P.C. supports working families and our experienced employment lawyers are here to make sure you receive the salary and benefits you deserve. To find out more, you can contact us at our office in Red Bank, New Jersey at 732-842-6500, our Marlton, New Jersey office at 856-985-9800, or our office in Newark, New Jersey at 973-878-9040. 

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. 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.

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.

After months of a steady decline in COVID-19 cases and deaths throughout the country, we are sadly starting to see numbers rise again. Experts believe this uptick is due to the slowing of vaccination rates and the more contagious Delta variant making its way through the population.    

Many employers want too help reduce this spread and allow employees to return to their offices. As a result, many are considering requiring their employees to be vaccinated as a condition of employment. Employers including Facebook, Google, Netflix and Morgan Stanley, as well as some public institutions, have started to require vaccinations.  

Vaccine Mandates in New Jersey

One of New Jersey’s largest health care employers, The Robert Wood Johnson Barnabas Health system (RWJB), was one of the state’s first employers to require vaccinations.  As of their June 30th deadline, only six employees failed to get vaccinated. Because of this, RWJB terminated them.  

Most recently, Governor Phil Murphy announced he is requiring workers in certain state and private health care facilities and high risk congregate settings to be vaccinated. By September 7, 2021, workers must be vaccinated or be subject to regular COVID-19 testing.   

The main reason for the push toward mandatory vaccinations is that they are so effective at reducing COVID-19 illness and death. New Jersey, which has one of the highest vaccination rates in the country, is a prime example of this success. Since July 19, only .001 % of those who were fully vaccinated have died due to COVID-19.   

Do you work in New Jersey and are wondering what this means for you? If so, McOmber McOmber & Luber, P.C. has answers to some of your common questions. 

Can My Employer Require Me to Get the COVID-19 Vaccine? 

Yes. The U.S. Equal Employment Opportunity Commission (EEOC) recently stated that employers can require vaccinations as long as they comply with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII)  and other EEOC laws. Likewise, New Jersey’s Department of Law and Public Safety has stated that mandatory vaccines are legal as long as they comply with the New Jersey Law Against Discrimination (LAD). 

However, if an employee falls within the following categories, they may be exempt from an employer’s mandatory vaccination policy:

  1. The employee has a disability precluding them from getting the vaccine;
  2. The employee is pregnant or breastfeeding and their doctor advised them not to get the vaccine; or
  3. The employee has a sincerely held religious belief, practice or observance against vaccination.  

Disability Exception 

Some employees have serious medical conditions which qualify as disabilities and cannot receive the COVID-19 vaccine. In this case, an employer may have to provide a reasonable accommodation. This is to allow the employee to continue to work in the workplace without compromising their health and the safety of others.  

To comply with the ADA and LAD, an employer can ask the employee for medical documentation and make limited inquiries. In turn, they must make sure to keep this information confidential and separate from employment records.   

Pregnancy or Breastfeeding Exception 

According to the U.S. Centers for Disease Control and Prevention (CDC), pregnant and recently pregnant people are more likely to get severely ill with COVID-19 compared with non-pregnant people. The CDC has also concluded that the COVID-19 vaccine does not hurt lactating mothers or their breastfed babies. Therefore, the CDC recommends the COVID-19 vaccine for pregnant and breastfeeding mothers as well as consulting with one’s healthcare provider to discuss any concerns. 

An employee may inform their employer that their doctor has advised them against getting the vaccine while they are pregnant or breastfeeding. Consequently, the parties should begin the interactive process of discussing possible reasonable accommodations. Again, employers are allowed to request medical documentation, but they must keep this information confidential.   

Religious Belief Exception 

An individual’s religious beliefs may also provide an exemption to an employer’s mandatory vaccination policy. Pursuant to Title VII of the Civil Rights Act of 1964 and the LAD, employers cannot discriminate against employees based on their religion and must accommodate religious observances and practices absent undue hardship. N.J.S.A. § 10:15-12(a). When making this determination, a court must distinguish between protected religious observances and mere desires or preferences. Fallon v. Mercy Catholic Med. Ctr., 877 F.3d 487 (3d. Cir. 2017).   

If you have a sincerely held religious belief that prevents you from taking the vaccine, your employer may make a limited inquiry. They may look into the facts and circumstances supporting your request.   

Requesting an Accommodation and the Interactive Process  

If you believe you are unable to take the vaccine due to disability, pregnancy, breastfeeding, or on religious grounds, you need to raise your concerns with your employer. This is an interactive process whereby you and your employer discuss “reasonable accommodations.” Examples include requiring the employee to wear a mask, work a staggered shift, reassigning the employee to a position in a different workspace, or permitting an employee to work from home.  

While the accommodation is meant to keep you and others safe, it cannot impose an “undue burden” on the employer’s operations.   

If a reasonable accommodation is not possible, then the employer can enforce its policy of excluding unvaccinated employees from the workplace. However, this does not mean that an employer can automatically terminate the employee. According to EEOC guidance and the New Jersey LAD, this may violate other laws, regulations, or policies.  

Managers and supervisors are prohibited from retaliating against employees who request an accommodation.   

Can I Be Terminated if I Do Not Comply with My Employer’s Mandatory Vaccination Policy? 

Maybe.  If your employer requires you to get a COVID-19 vaccine as a condition of employment and you do not have a valid exemption, an employer may be able to terminate you. However, an employer cannot terminate an employee in violation of federal or state discrimination laws such as Title VII and the LAD. Likewise, there could be complications if an employee has an employment contract or is working under a collective bargaining agreement. Employers should be careful not to violate the terms of those agreements. 

Get Legal Assistance

COVID-19 cases are once again on the rise, but with more people getting the COVID-19 vaccine, this trend can be reversed. McOmber McOmber & Luber P.C. is following the latest developments and is here to guide you through these uncertain times. If you have questions or concerns about how your employer is keeping you safe in the workplace, we can help. 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.

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. 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.

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. 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.

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. 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.

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. 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.

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. 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.

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 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. 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 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. 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, our Newark office at 973-878-9040, or contact us at 888-396-0736 or online for a free consultation.

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This website’s information does not, and is not intended to, constitute legal advice or form an attorney-client relationship. All content is for general information and may not constitute the most up-to-date legal information. You should consult with an attorney for advice on specific legal problems. Read the full Disclaimer here.

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