FAQs

Noncompetes are contractual agreements that restrict employees from working in a competing business or starting a similar business for a certain period after leaving a job. These clauses are intended to protect a company’s intellectual property and investments in employee training, but they tend to be exploitative, often keeping workers in a job they want to leave or forcing to change their field or locations.

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The timeframe to report workplace harassment can vary depending on the jurisdiction and the specific laws in place.

Workplace harassment is a pervasive issue that impacts employees’ morale, productivity, and overall well-being. At McOmber McOmber & Luber, we are passionate about fighting for those who have fallen victim to this insidious behavior.

Use our Comprehensive Guide to Workplace Harassment to learn more.

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If your supervisor is harassing you, it’s essential to document the incidents and report them to a higher authority within the company, like a manager above your supervisor or the human resources department.

Workplace harassment is a pervasive issue that impacts employees’ morale, productivity, and overall well-being. At McOmber McOmber & Luber, we are passionate about fighting for those who have fallen victim to this insidious behavior.

Use our Comprehensive Guide to Workplace Harassment to learn more.

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Absolutely. Social media harassment and other forms of harassment can extend beyond the physical workplace into the digital realm. Cyberbullying, online harassment, or sharing inappropriate content can all be forms of workplace harassment if they involve coworkers or occur in work-related contexts.

Workplace harassment is a pervasive issue that impacts employees’ morale, productivity, and overall well-being. At McOmber McOmber & Luber, we are passionate about fighting for those who have fallen victim to this insidious behavior.

Use our Comprehensive Guide to Workplace Harassment to learn more.

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Yes, workplace harassment can overlap with other forms of harassment, such as racial, religious, age, and gender-based harassment. Discrimination and harassment can intersect, where an individual might be targeted for multiple aspects of their identity.

Workplace harassment is a pervasive issue that impacts employees’ morale, productivity, and overall well-being. At McOmber McOmber & Luber, we are passionate about fighting for those who have fallen victim to this insidious behavior.

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Colleagues who witness workplace harassment should report it to a supervisor, manager, or the human resources department. Supporting the victim by being an ally, offering to be a witness, and encouraging the victim to report are also crucial actions. It’s essential to foster a culture where harassment is not tolerated, and bystander intervention can play a key role in this.

Workplace harassment is a pervasive issue that impacts employees’ morale, productivity, and overall well-being. At McOmber McOmber & Luber, we are passionate about fighting for those who have fallen victim to this insidious behavior.

Learn more by referring to our Comprehensive Guide to Workplace Harassment.

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Yes, there are laws that protect LGBTQ+ individuals from workplace harassment. In the U.S., for instance, the Supreme Court ruled in 2020 that the Civil Rights Act of 1964, which prohibits sex discrimination, applies to discrimination based on sexual orientation and gender identity. This means that employers cannot discriminate or harass employees based on their LGBTQ+ status. Many states and local jurisdictions also have their own laws offering additional protections.

To learn more, refer to our Comprehensive Guide to Workplace Harassment.

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No, in New Jersey, under the NJLAD, it is illegal for employers to deny training or promotion opportunities based on an employee’s pregnancy status. Discriminatory actions based on pregnancy, childbirth, or related medical conditions are prohibited.

Learn more by reading our Comprehensive Guide to Pregnancy Discrimination.

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Denying or limiting health insurance coverage for pregnancy-related conditions when other medical conditions are covered can be a form of discrimination. In New Jersey, if an employer provides health insurance, it must cover expenses for pregnancy-related conditions on the same basis as costs for other medical conditions.

Learn more by reading our Comprehensive Guide to Pregnancy Discrimination.

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Yes, there are specific protections for women with high-risk pregnancies. Under the NJLAD, employers are required to provide reasonable accommodations for pregnant employees if requested, with advice from a physician. This can include women with high-risk pregnancies. Such accommodations might include more frequent breaks, modified work schedules, or temporary reassignments.

Learn more by reading our Comprehensive Guide to Pregnancy Discrimination.

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Training that educates employees and employers on the rights of pregnant workers, as well as programs that promote empathy and understanding about the challenges pregnant employees might face, can be effective. This can be combined with awareness campaigns showcasing positive stories of employees during and post-pregnancy.

Learn more by reading our Comprehensive Guide to Pregnancy Discrimination.

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In New Jersey, the NJLAD protects traditional employees, independent contractors, and freelancers from discrimination, including pregnancy discrimination. However, the relationship’s specifics and the work arrangement’s nature can influence how these protections are applied.

Learn more by reading our Comprehensive Guide to Pregnancy Discrimination.

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You can support colleagues facing pregnancy discrimination by being an active ally, listening to their experiences, offering to be a witness if they choose to report the discrimination, and encouraging an inclusive workplace environment. Familiarizing yourself with the New Jersey Law Against Discrimination can also provide insights into the rights of pregnant workers in the state.

Learn more by reading our Comprehensive Guide to Pregnancy Discrimination.

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Pregnancy discrimination in part-time or temporary positions is illegal; in New Jersey, part-time and temporary workers are protected from pregnancy discrimination under the NJLAD. Discrimination based on pregnancy is unlawful regardless of the permanency or hours of the position.

Pregnancy discrimination is a serious problem, and our discrimination attorneys are ready to take action. With offices in NJ, NY, and PA, McOmber McOmber & Luber, P.C. has experience in representing a wide range of employees who have been subjected to harassment and retaliation on the basis of pregnancy.

If you have been the target of discrimination because of your pregnancy or related medical conditions, your employer may be responsible for compensating you for economic damages and your pain and suffering. A pregnancy discrimination lawyer can get you the compensation you deserve.

Contact us today for a free consultation.

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The Pregnancy Workers Fairness Act (PWFA) requires covered employers to grant reasonable accommodations. Additionally, under the PFWA, employers: 

• Can’t require a protected employee to accept an accommodation without a conversation about it. 
• Can’t bar a qualified applicant or employee based on their pregnancy-related limitations. 
• Can’t require employees to take leave in lieu of accommodations. 
• Can’t discriminate against employers for reporting or reacting to discrimination under the PWFA. 
• Can’t interfere with an employee’s rights under the PWFA. 

Pregnant employees may also have additional protections under Title VII, the ADA, the Family and Medical Leave Act, and the PUMP Act, or State law. If you believe you’ve faced discrimination due to your pregnancy or recent childbirth, talk to a lawyer. 

Learn more by reading our Comprehensive Guide to Pregnancy Discrimination.

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To receive accommodations under the PWFA, the affected employee will typically need to start a conversation with a superior or HR representative. You should always put your request in writing, clearly stating that you are making a request for accommodations under the Pregnancy Workers Fairness Act. State both the accommodation you are requesting and how it would allow you to perform your job to the best of your abilities. 

Learn more by reading our Comprehensive Guide to Pregnancy Discrimination.

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A reasonable accommodation is a change to the workplace or to daily procedures. An accommodation is considered reasonable if it will clearly alleviate a hardship on the protected applicant or employee without creating an undue burden for the employer. 

Learn more by reading our Comprehensive Guide to Pregnancy Discrimination.

 

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If your employer is a covered employer, it’s possible that you are protected by the PWFA (Pregnancy Workers Fairness Act). However, it’s worth noting that there is a distinction between the PWFA and Title VII, which also provides protection against pregnancy-related discrimination.

Learn more by reading our Comprehensive Guide to Pregnancy Discrimination.

 

 

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When you look at the language of the Pregnancy Workers Fairness Act, you’ll see the term “covered employers.” A covered employer is, simply, an employer that is required to meet the new anti-discrimination laws codified by the PWFA.

Learn more by reading our Comprehensive Guide to Pregnancy Discrimination.

 

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Many attorneys mistakenly believe they are not allowed to accept a referral fee. The New Jersey Supreme Court authorizes lawyers to share fees on a case so long as the fee is paid by a certified attorney pursuant to R. 1:39-6.

R. Armen McOmber has been designated by the Supreme Court of New Jersey as a Certified Civil Trial Attorney.

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• Transportation

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Data breach lawyers can help victims in several ways, including:

• Filing a claim against the responsible party
• Providing evidence proving negligence
• Securing the proper compensation
• Protecting the victim’s rights
• Offering legal advice and representation in court

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Data breach lawsuits are legal actions that victims of data breaches file to seek compensation from the responsible parties.

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Data breach lawyers are legal advocates who can represent victims of data breaches. They help protect the rights and privacy of data breach victims. These professionals also work to ensure that the victims obtain the compensation they deserve after suffering damage and losses from the event.

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Cybercriminals generally look for personally identifiable information (PII) in data leaks. Examples of PII include credit card details and Social Security numbers. If your information falls into the hands of the wrong people, you may become a victim of identity theft.

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A data breach occurs when the information a company gathers about or from you is accessed by someone who doesn’t have the authority to access that information.

 

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About 34% of workers in the restaurant sector quit their jobs or want to do so. Even though this is an excellent way to get experience and make money, working at a restaurant is no walk in the park. The work environment is quite stressful, and the wages aren’t the best.

To make sure you’re being treated properly and lawfully, it’s crucial to be aware of the rights you have as a restaurant employee. Some restaurants take part in unlawful behavior that infringes on the rights of employees to make more money.

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The truth is that it depends on the restaurant that you’re in. Different restaurants have varying tipping policies.

Some restaurants may have pooled tips, while others may have direct tips. These two are the most popular options for restaurants around the country.

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A tipped employee is a legal term that’s used to describe a career field that relies on tips in a major way. This is someone who receives at least $30 or more per month in tips. These kinds of jobs are almost exclusively in the service industry.

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The tipped minimum wage for New Jersey is $5.26 per hour. As you can see, this is significantly lower than the standard minimum wage in the state. However, it’s much higher than most other states in the US.

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If you’re a tipped employee, you’ve certain rights under federal and New Jersey laws. These rights include the right to retain all tips received, the right to be paid at least the minimum wage, and the right to keep tips even if the employer takes a tip credit. The law requires employers to inform employees of their tip credit, and you can review your payroll records.

If you believe your employer has violated your rights, you can file a complaint with the Department of Labor. The complaint should include specific details about the violation, such as the incident’s date and time, the witnesses’ names, and other related evidence.

The Department of Labor will investigate the complaint and take appropriate action if necessary. You also have the right to file a private lawsuit against your employer for tip violations.

In short:

• Know your rights: Familiarize yourself with the laws and regulations governing your industry and your state’s tipped employee-specific laws.
• Keep accurate records: Keep a record of tips received and ensure your employer records them appropriately.
• Seek legal advice: If you have experienced wage theft or other violations of your rights, seek legal advice from a qualified attorney.

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As an employee, you work hard to provide excellent customer service and earn gratuities. Unfortunately, some employers may pocket some of those tips, which is unfair and illegal. This guide explores the federal and New Jersey laws regarding tipped employees to help you recognize and report tip violations. You deserve full compensation for your hard work and dedication.

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The U.S. Equal Employment Opportunity Commission (EEOC) is the agency responsible for enforcing laws against workplace discrimination, including sexual harassment. It defines sexual harassment as “unwelcome sexual advances, requests for sexual favors or other verbal or physical harassment of a sexual nature” in the workplace. Sexual harassment can take place between the victim and a superior, supervisor, co-worker, or non-employee, such as a client or customer. Perpetrators can be both male and female, and the victim does not have to be of the opposite sex.

According to the EEOC, simple teasing, offhand comments, or isolated incidents are not recognized as sexual harassment. To constitute illegal sexual harassment, the conduct must be severe or pervasive, often indicated by a pattern of behavior. There are two types of illegal sexual harassment: quid pro quo and hostile or offensive work environment.

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The law prohibits employers from basing hiring decisions on protected characteristics of a job candidate, such as race, age, gender, religion, or disability. In fact, interviewers should not even ask questions about protected characteristics during a job interview, because there is no way to separate the question from the hiring decision.

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Under state law, employers are entitled to change their employees’ wages. They need to give you advance notice and it can’t be done retroactively. However, they may not reduce your pay below the state minimum wage if you are in a qualifying job.

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Under the new legislation, a standard working week in most jobs is 40 hours. This means that you are entitled to overtime pay for every minute you work over 40 hours.

If you’re an employee, you are legally protected against workplace discrimination, but unfortunately, too many people don’t know their rights and some employers count on that fact so they can continue manipulating and mistreating workers.

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While many may view noncompetes as unethical and questionable, there is some good news. Just because an employee breaks their noncompete does not mean they are in peril of consequences. A court will decide whether to uphold noncompete clauses depending on the situation. 

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Noncompetes affect a wide range of industries. These can be high-level employees such as engineers and executives. But it can also affect smaller-scale jobs such as hairstylists and workers in a warehouse. 

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A noncompete clause, or non-compete agreement, is a special contract. This is a contract between the employee and employer. A noncompete prevents that employee from working with any direct or indirect competitors. 

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There are many different types of workplace drug testing.  Drugs an employer can test for, include but are not limited to:

• Cannabis/THC
• Amphetamines (which can include methamphetamine and MDMA, otherwise known as ecstasy)
• Cocaine
• Opiates (such as heroin, morphine, codeine, oxycodone, etc.)
• Phencyclidine, otherwise known as PCP

There are also different methods employers may use to test for these types of drugs, each with its own pros and cons.

Sexual harassment in the workplace includes any unwelcome comments, conduct, or behavior regarding sex, gender, or sexual orientation. All employees should be aware of what constitutes sexual harassment and report any incidences that occur.

Examples of sexual harassment in the workplace include:

• Actual or attempted rape or sexual assault;
• Unwelcome deliberate touching;
• Pressure for sexual favors;
• Unwelcome and inappropriate comments;
• Unwanted gifts or communications;
• Treating employees differently based on their gender; and
• Retaliation against an employee for a sexual harassment complaint.

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This form of sexual harassment is categorized by a work environment that is hostile or abusive due to the unwelcome verbal or physical conduct of an employee or non-employee such as an outside sales representative or delivery person. The unwanted verbal or physical conduct must be severe or pervasive. Courts have described such conduct as that which creates an “arbitrary barrier to sexual equality at the workplace.”

Wrongful termination arises when an employee believes the employer illegally fired him or her. This occurs when an employee is fired and that firing breaches an employment contract or employment law.

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If your contract lays out grounds for termination the employer cannot fire you on other grounds. The contract itself can help prove wrongful termination by showing the grounds acceptable for termination and any policy or procedure articulated for termination.

Additionally, to show that wrongful termination occurred you must show that you engaged in a protected action and that the protected activity was the reason for the termination.

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“At-will” employment means that an employer or employee may terminate the relationship at any time, without reason or cause. An employer may not, however, terminate a worker’s employment for unlawful cause, such as in violation of NJLAD, in retaliation for reporting harassment or discrimination in the workplace, or for whistleblowing. If you suspect you’ve been terminated for an unlawful reason, you may have grounds for a wrongful termination claim.

Yes. There are multiple wrongful termination standards that protect employees in at-will employment relationships. This ensures that there are a multitude of scenarios in which a worker’s rights are protected, even for non-contracted work. For example, if a termination is a violation of public policy or of an implied contract, it can be disputed.

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No, you are not entitled to a warning before you are terminated. New Jersey is an “at-will” employment state, meaning that there is no legal obligation to provide advanced notice to an employee facing termination.

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The New Jersey Law Against Discrimination (NJLAD) firmly establishes that an employee cannot be fired for being a member of several protected classes. These include:

• Race;
• Age;
• National origin;
• Gender;
• Disability;
• Sexual orientation; or
• Pregnancy.

Employment law includes a wide variety of issues ranging from all areas of the employers and employee relationship. It includes the laws and rules regulating relationships between employees and employers.

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The New Jersey Conscientious Employee Protection Act (CEPA) protects employees who come forward to report illegal and fraudulent activities and employer commitments. CEPA is frequently referred to as New Jersey’s whistleblower statute and prohibits employers from retaliating against employees who report such activity. Wrongful termination, demotion, job transfers, or any form of intimidation, abuse, or harassment is considered unlawful when taken against an employee who exercises their legal right to report corruption.

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New Jersey law does not require severance packages, but some employers offer them in the context of separation agreements; always ask a lawyer before signing a separation agreement.

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You can take an unpaid medical leave of up to 12 weeks if your employer has 50 or more employees and you have worked there for at least a year.

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FMLA guarantees you the right to take an unpaid medical leave of up to 12 weeks due to your own illness or family caregiving obligations.

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Your employment contract could potentially help your wrongful termination case. Another exception to at-will employment is the existence of an employment contract which sets forth:

• Acceptable grounds for termination; and
• Procedures and protocols to be followed by an employer when termination of employment will be sought.

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LGBTQ+ discrimination involves treating someone unfavorably because of that person’s sexual orientation or gender identity, including transgender status.

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Racial discrimination involves treating someone unfavorably because of that person’s race, skin color complexion, or because of personal characteristics associated with race (such as hair texture, skin color or facial features).

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Employee misclassification is when employers incorrectly label workers as independent contractors rather than employees to avoid paying taxes and other payments.

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Disability discrimination occurs when an employer treats a qualified individual less favorably than other employees or applicants because he or she has a disability.

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Gender or sex-based discrimination involves treating someone unfavorably because of that person’s sex, including the person’s sexual orientation, or gender identity (including transgender status).

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

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

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

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You need to review your company’s policies and procedures for taking vacation days. 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 are an hourly, non-exempt employee and your employer contacts you during vacation, 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.

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 vacation days 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.

No. 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.

Age discrimination occurs when an employer treats an applicant or employee less favorably because of the individual’s age.

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To prove age discrimination an employee must show that a negative action such as a demotion or firing was on the basis of the employee’s age. The Age Discrimination in Employment Act (“ADEA“) forbids age discrimination against people who are 40 or older.

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Pregnancy discrimination arises when an employer treats an applicant or employee unfavorably because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth.

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Yes, job applications can ask applicants for their date of birth or year of graduation from high school or college. However, how the employer chooses to use this information may violate the ADEA.

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Yes, your employer can request a doctor’s note for pregnancy-related accommodations if the request for accommodations falls under the Americans with Disabilities Act (“ADA“). However, the employer cannot single out pregnancy-related conditions for special procedures to determine the employee’s ability to work. Learn more using our Comprehensive Guide to Pregnancy Discrimination. 

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There are many steps you can take to document and prove sexual harassment cases. It is helpful to keep track of the nature of the harassment, when the harassment occurred, who was involved, the location of the harassment, and if there were any witnesses. You should also tell the harasser their actions are unwelcome and making him or her uncomfortable. If the harassment continues you should inform your manager and consult the employee handbook about formal complaints. You must follow any sexual harassment policies your employer put in place. If that means reporting the event to a manager then you must take that step before pursuing action with the EEOC.

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AARP, Aging for Life, Unretire Yourself, and HelpAge advocate for older individuals in the workplace. These organizations provide tips and advocacy opportunities for individuals to combat ageism and age discrimination in the workplace.

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Defamation is when a party makes a false statement about someone else that injures their reputation or causes them other harm.

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According to the FLSA, employers are not limited in the number of hours they may require employees to work. However, it does require employers to pay employees time and a half for any hours of overtime worked in a week. Another common misconception is that employees who work over eight hours in a day must receive overtime compensation. This is not so; the FLSA only requires that employees be paid overtime for any hours worked in excess of 40 in a week.

No, your employer cannot force you to take pregnancy leave. The Equal Employment Opportunity Commission (EEOC) requires employers to allow pregnant employees to work for as long as they are able to perform their jobs.

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If you have questions other than the ones listed on this frequently asked questions page, or if you want to know more details about the topics listed here, contact the real estate lawyers at McOmber McOmber & Luber, P.C. in Red Bank, New Jersey.

Lenders sometimes advertise quick and inexpensive refinances, but you should beware of these offers. If you refinance your mortgage, you should hire a real estate lawyer to help you renew your title insurance and ensure that the lender is acting in your best interest.

A short sale is a last-ditch effort to avoid foreclosure. A homeowner who cannot pay their mortgage sells the house for less than the mortgage amount and gives the entire proceeds for the bank. This allows the buyer to buy the house at an affordable price. 

A foreclosure is when the mortgage lender (usually a bank) repossesses the house after the borrower has stopped making payments on the mortgage. Therefore, the lender is just trying to recover their losses by selling the house to you, so they are often willing to sell at a low price.

A 1031 exchange is mostly similar to any other sale of a real estate property, except that the gains from the sale are not taxable, at least not in the same tax year that the sale took place. 1031 exchanges have been popular among small-scale real estate investors, but laws that went into effect in 2021 will restrict the circumstances where you can conclude 1031 exchanges. 

Title insurance protects you from enormous legal fees in case a dispute arises about the title to your house, such as if a previous owner was not truthful about their ownership of the house. The buyer, with the help of their lawyer, should obtain the title insurance. The cost of the premium depends on the sale price and the mortgage principal amount.

The buyer is responsible for paying for the inspection, survey, title searches, title insurance, mortgage costs, taxes, and attorney’s fees. Depending on the type of property you are buying, you might also need to pay for condo fees or homeowner’s insurance.

When you close on a sale, you must pay off your existing mortgage. You must also pay the NJ Realty Transfer fee, your real estate agent’s commission, and attorney’s fees. 

Mortgage lenders require termite inspections for all properties. They require well water and radon inspections for some properties. Structural and septic inspections are also recommended.

No. It is an estimated closing date. The buyer or the seller can move the closing date up to 14 days later without penalty. The only way to get the exact closing date set in stone is to include the words ‘Time of the Essence’ on the contract.

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.  

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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.   

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The first suggestion for how to update policies and procedures to protect LGBTQ+ employees is review existing harassment, discrimination, and equal employment opportunity documents. Make updates if necessary to ensure they encompass protections for LGBTQ+ individuals when considering sex as the motivating characteristic.

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

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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. 

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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.” 

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Congress added the Pregnancy Discrimination Act (PDA) to Title VII to ensure that employers did not discriminate against pregnant employees. The PDA requires employers to offer leave or benefits to pregnant workers if those benefits are offered to other employees who experience physical or mental disabilities. While this does not guarantee a pregnant worker an accommodation, it does ensure that pregnant workers cannot be treated differently.

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Yes, the EEOC filed suits against employers who fired individuals because they took medical leave for pregnancy-related conditions. The guidance listed miscarriage as one of the examples of pregnancy-related conditions.

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Perhaps. This depends on whether your employer offers temporary leave for other physical or mental disabilities. If your employer provides other temporary leave, then your employer must offer leave for your miscarriage.

To learn more, refer to our Comprehensive Guide for Pregnancy Discrimination or call our offices to set up a free consultation.

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While each case is different, as a firm we are committed to delivering results and protecting your interests in an efficient and cost-effective manner. This means we will invest the time with you to discuss and understand your current needs and long-term goals. As a team, we will tailor a legal strategy that best serves you.

Do your research. Your attorney should be in good standing with the bar of your state and has not been disciplined or suspended from practicing law. Check with your state’s disciplinary review board to determine if he or she was the subject of public discipline or reinstatement proceedings. You can find this information with either the local state or county bar association or the state supreme court disciplinary review board. You should also vet your attorney by checking websites, social media, etc. Finally, ask friends and family for recommendations. If they cannot recommend someone to you, then ask the attorney for referrals. 

There is no way to know how long it will take for your matter to be resolved. It all depends on the willingness of both parties to come together for a fair and reasonable resolution. If that does not occur and the matter goes to court, resolution can take much longer. However, most cases end up settling which is why it is important for you to hire an experienced and trusted attorney who knows the law and how to achieve fair results. 

Yes. Our decades of experience representing employees in employment disputes and lawsuits, makes us uniquely qualified to assist employers. We understand the challenges that employers face in complying with the multitude of state and federal employment laws and what makes them vulnerable to lawsuits. We counsel our employer clients on how to avoid litigation by making sure they have clear and understandable employee handbooks, employment agreements, severance packages and the like.

Yes. We are happy to talk with you about your case and discuss how we can help you. Once we agree to work together and you would like us to represent you, we will provide you with various options on how to move forward.  You can reach us at our Red Bank office at 732.842.6500, at our Marlton office at 856.985.9800, Newark office at 973.878.9040, at our New York office at 929.566.1300, at our Philadelphia office at (267).777.7800, toll free at 888.396.0736, or through our online contact form

It depends on the type of payment option you choose. If you decide to pay the firm hourly or a fixed fee, you will pay a retainer prior to the commencement of services. A retainer is like a security deposit for a rental property. The retainer is deposited in the attorney’s trust account and held as financial security. At the completion of your matter, any unused retainer will be returned to you. If you choose to hire us on contingency, you do not pay a retainer.

It depends on the type of payment arrangement you choose. For a contingency based agreement, you do not pay any out-of-pocket costs until you receive a settlement/recovery. In that case, the costs and fees will be deducted from your settlement/recovery. If you choose the fixed fee or hourly method of payment, you will receive a monthly bill for these charges. Examples of these costs and fees are photocopies, court fees, postage fees, overnight delivery fees, etc. 

The best way to prepare for our first meeting is to review any documents you have that are relevant to your case, such as e-mails, text messages, and any other correspondence. This will refresh your memory and will help us better understand your situation and why you are looking for legal representation. It is important not to disclose to anyone the details of our consultation because sharing this information to others waives the attorney-client privilege and threatens disclosure to the opposing side. 

The law is complicated and everchanging. Every day, federal, state, and local governments are passing laws that impact our lives. If you are a business owner, a lawyer will guide you the variety of rules and regulations you must comply with in order to avoid litigation.

On the flip side, if you are an individual, there may be several reasons why you may want to retain a lawyer, such as workplace concerns. 

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Yes. During your initial consultation, any conversations you have with us on the phone or in-person about your case are protected and privileged. This means we cannot disclose our conversations or be compelled to disclose them to another party. If you decide to hire us as your attorneys, our communications will continue to be confidential. However, if you tell another party about our conversations, you are waiving the privilege and these discussions could be disclosed to the opposing side. 

When you hire us, we will discuss with you all the options for resolving your matter. In most cases, filing a lawsuit is a last resort. However, if it is determined that the matter cannot be reconciled through negotiation and settlement, we can take several paths, including filing a lawsuit or a motion to compel the opposing party to take certain action. 

What To Do

If you experience sexual harassment in the workplace, you should take detailed notes of the harassment. This documentation can help with your sexual harassment claim and any potential, future litigation. These detailed records should include:

• Nature of the harassment
• When and where harassment took place
• Who was involved
• Any potential witnesses to the harassment

Next, you should contact a New Jersey sexual harassment attorney. A sexual harassment lawyer can inform you of your rights and any potential options going forward.

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Our attorneys and office staff are always available to help you. You can contact us via phone or online, and we will respond as quickly as possible. You can reach us at our Red Bank office at 732.842.6500, at our Marlton office at 856.985.9800, Newark office at 973.878.9040, at our New York office at 929.566.1300, at our Philadelphia office at (267).777.7800, toll free at 888.396.0736, or through our online contact form

Once you have an attorney assigned to your case, you will receive their firm e-mail address and you can contact them directly. Communication is critical so we will regularly keep you updated on your case especially as new developments arise. 

We have several options for payment: 

• Fixed fee:  You pay a fixed amount for our services. 

• Hourly:  You pay by-the-hour.  

• Contingency:  A contingency means that you do not pay us until and unless you have a recovery/settlement of your case.  

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When you hire us on a contingency basis, and you do not receive any recovery, you do not pay us any attorneys’ fees or costs. However, if we are working on a matter for you by the hour or at a fixed rate, and you do not receive any recovery, you are required to pay the costs and fees that are outlined in the retainer agreement. Unfortunately, there is no way to predict what will happen in a matter and we cannot guarantee a particular outcome. However, what is guaranteed is that we will provide you with the best service possible and will keep any costs reasonable and economically practical.  

A lawyer is someone who can help you handle a dispute or problem that you have not been able to resolve on your own. A lawyer thinks critically about a situation and provides legal advice to the person they are representing. Since the law is always changing and is complex, it is best to hire someone who is experienced in the field you need. For example, there are lawyers that practice in criminal, employment, environmental, corporate, family, real estate, and the list goes on. 

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McOmber McOmber & Luber, P.C. is a regional firm that works predominantly in the New York/New Jersey/Philadelphia metropolitan areas. Our offices are in Red Bank, Marlton, Newark, New York, and Philadelphia and our attorneys are licensed to practice in New Jersey, Pennsylvania and New York. If you have a matter outside of the tri-state area, that is not a problem. We can apply to the court pro hac vice, which is a routine motion that allows us to temporarily practice in your state.

In New Jersey, workers involved in labor disputes may have the option to file for unemployment. This legislation allows striking workers to collect these benefits if their employer breaks the stipulations outlined in their employment contract or collective bargaining agreement. Additionally, employees could be entitled even if the disagreement is not related to their company’s refusal to follow the employment contract’s terms. There is a mandatory 30-day waiting period for filing claims.

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Employers who ask questions during interviews that would reveal information pertaining to protected characteristics without having a job-related basis, and then use that information to make their decision, are violating state and federal discrimination laws. Sometimes inappropriate questions are easy to recognize such as, “How old are you?”, while others are less obvious. For more information on discriminatory interview questions, click here.

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Federal and state laws provide new parents with maternity benefits and protections. Federal and state laws protect pregnant employees and newborn mothers in some of the following ways:

• Maternity leave
• Job security
• Protect employees from pregnancy discrimination and maternity leave discrimination
• Family leave insurance

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Yes, you can get fired for discussing politics on social media. New Jersey is an at-will employment state which means a private employer can terminate you for any reason or no reason at all.  Therefore, if an employer concludes that your speech is causing other employees to feel uncomfortable or is harming or interfering with its business, you could be disciplined or terminated. This extends to posting on social media, wearing political clothing, pins, masks, etc.  Make sure to read your employee handbook to find out what conduct violates your workplace rules.

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There are three types of white collar FLSA exemptions: executive, administrative, or professional.

A worker in one of these categories must satisfy both salary and duty requirements to be exempt from the FLSA overtime rules. Titles, such as manager, or salary do not make an employee automatically exempt. The employee must be paid on a salary basis at a minimum of $455 per week. Any employee paid on an hourly basis or commission only system does not satisfy the salary requirement for white collar exemptions.

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If you believe your employer has discriminated against you based on your race, age, pregnancy, disability, or other protected classification, you should contact an employment discrimination attorney to discuss your rights and options. After speaking with a lawyer, you will most likely file an internal complaint with your company’s human resources department or labor union. This provides your employer with the opportunity to resolve the complaint and discrimination before resorting to the legal process.

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If the DOL finds that an employee quit without good cause, that employee will not be eligible for unemployment benefits. Good cause is generally established by showing that the employee’s reason for quitting justifies the applicant’s unemployment status. Applicants who left voluntarily due to domestic violence, military spouse relocation or an unhealthy work environment will generally be considered to have quit with good cause.

Employees who were fired for misconduct such as insubordination, excessive absenteeism or coming to work under the influence of drugs or alcohol will not be eligible to receive unemployment benefits.

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If New Jersey employers choose to give employees rest or meal periods, they must follow federal law. Federal law states that short breaks, usually between five and 20 minutes, are common and promote employee efficiency. Such short breaks are considered compensable work time that should be included in the total number of hours worked during the week. However, these breaks must actually be taken and may not be offset against other working time. They may also not be extended beyond the amount of time prescribed by the employer.

When a debtor is not only recalcitrant, but attempting to conceal funds and assets, your attorney can use an information subpoena to gain information about the debtor’s income and income sources, their personal property, and if they own real estate or vehicles. Should the debtor refuse to answer, a request to the court can be made to open post judgment discovery. Here, the debtor or a third party may be forced to testify about his/her assets and income.

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A tip is any money a customer voluntarily pays beyond the amount charged for products or services plus tax. Some employers, such as restaurants, add a mandatory service charge to bills for large parties or catered events. This designated service charge allows employers to keep the extra amount paid even if the customer thinks that by paying it, he or she is leaving a tip for an employee.

No, an employer cannot force you to volunteer and work unpaid hours unless it falls under your job description. If the volunteering is presented with the threat of adverse employment action if you do not comply, then you may have a claim for unpaid wages.

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In the many states with at-will employment laws, employers are generally within their rights to fire a worker at any time, in any manner – including letter, phone call, or e-mail, provided the firing is not discriminatory or based on a person’s protected class status.

A reduction in force (RIF) is the permanent termination of employees due to restructuring, the elimination of their department, or a lack of funding or available work to support those employees. A layoff, on the other hand, technically means that the termination is only temporary. However, it has come to mean a permanent termination in recent years, and in many cases, employers use it to mean exactly that. Individuals who lose their jobs to RIF and layoffs are entitled to collect unemployment benefits. In addition, if your employment contract included a severance pay clause, you are entitled to receive this payment. If you believe you have been wrongfully terminated, reach out to our office for a free consultation.

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While every state has different rules on proving defamation, the following five points generally must be satisfied to win a defamation lawsuit.

• The employer must make a false statement of fact about the employee.
• Then the employer must make the false statement to someone else, also known as “publication.”
• It must be shown that the employer knew the statement was false.
• The employee must have suffered harm from the false statement.
• Finally, the statement cannot have been made under privilege. Often statements given in the context of employment reference are considered privileged and protected from liability.

1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
2. The internship experience is intended to benefit the intern;
3. The intern does not displace regular employees and works under close supervision of existing staff;
4. The employer that provides the training derives no immediate advantage from the activities of the intern, and on occasion its operations may actually be impeded;
5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

Yes, you can apply for paternity leave in New Jersey. In 2009, New Jersey became the third state in the country to pass a law for paid family leave. Many mothers consider taking a leave from their jobs for the birth of a child, but fathers should know that they are also eligible to take paternity leave.

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The ADA covers employment practices by prohibiting discrimination in hiring, firing, and job placement and training. This also means that wages and benefits must not be determined based on an employee’s disability.

ADA Compliance in the Workplace

ADA compliance in the workplace involves providing reasonable accommodations to employees with disabilities, ensuring barrier-free access to work facilities or resources, and treating all employees equally. Employers are prohibited from discriminating based on disability in all aspects of employment.

What are the Rights of Employees Under the ADA?

Employees under the ADA have the right to reasonable accommodations for their disabilities, provided these accommodations do not cause undue hardship to the employer. They are also entitled to privacy regarding their medical condition and the right to be free from discrimination based on disability in hiring, promotion, job assignment, and other employment practices.

What are Employer Responsibilities Under the ADA?

Employers are responsible for providing a discrimination-free workplace and making reasonable accommodations for employees with disabilities. This includes modifications to the work environment, adjustments in work policies, or provision of auxiliary aids. Employers must also engage in a good faith interactive process to identify suitable accommodations and cannot retaliate against employees for exercising their rights under the ADA.

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The Americans with Disabilities Act applies to all private employers with more than 15 employees, and all public employers regardless of the size. This means that these affected employers cannot discriminate against qualified individuals with disabilities.

Maybe. In Hennesey v. Coastal Eagle Point Oil Co., 129 N.J. 81 (1992) the New Jersey Supreme Court concluded that random drug testing does not violate public policy or an employee’s right to privacy when there is a concern over safety.

Any qualified individual who can perform the essential function of the job, with or without reasonable accommodation, is protected against discrimination under the ADA.

Departments and agencies have the right to determine what is appropriate in their official correspondence, this includes email messages. Supervisors may limit correspondence strictly to the business matter being discussed and bar the inclusion of extraneous information religious or otherwise.

In the private work area (an area not regularly open to the public), the DOL allows religious expression to the same extent that non-religious private expression is allowed. Supervisors are allowed to limit religious expression if it interferes with the agency’s ability to do its work properly. However the restriction is not to be of the content or viewpoints of the religious expression. For example the supervisor may ban posters in general, regardless of content, but may not specifically ban or endorse the hanging of religious/anti-religious posters.

A job’s core duties are defined as the “essential function,” meaning the reason the job exists. This is an important definition, because as long as the individual can perform these duties, they cannot be considered unqualified due to inability to perform incidental or unnecessary job functions.

Employers can help reduce the chance of harassment is by clearly communicating to their workforce that fear of the COVID-19 pandemic should not be misdirected against co-workers based on national origin, race, among other protected classes.

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Not necessarily. An employer may provide telework, modified schedules, or other benefits to employees with children without running into sex discrimination issues. Employers may provide flexible working accommodations as long as they are not treating employees differently based on sex or other protected characteristics. By way of example, female employees cannot be given more favorable treatment than their male counterparts based on a gender-based assumption about who has caretaking responsibilities for children.

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Yes. Pregnancy-related medical conditions may be considered disabilities under the ADA, although pregnancy itself is not an ADA disability. If an employee makes a request for reasonable accommodation due to a pregnancy-related condition, the employer is obliged to consider the request under ADA rules. Additionally, as amended by the Pregnancy Discrimination Act, Title VII specifically requires that women affected by pregnancy, childbirth, and related medical conditions be treated the equal to others who are similar in ability or inability to work. A pregnant employee may be entitled to job modifications, such as telework, modified work schedules or assignments, and leave (to the extent provided to similarly situated employees).

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No. You cannot be forced to work in a setting that ignores guidelines laid out by The U.S. Department of Labor Occupation Health and Safety Administration (OSHA) or by NJ Executive Order 192.

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Unique rules apply when an employer offers employees a severance package in exchange for a general release of all discrimination claims against the employer. More information is available in EEOC’s technical assistance document on severance agreements.

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No. FMLA coverage is generally available for “serious health conditions.” An employee who is asymptomatic and does not have a sick family member but is self-quarantining is not entitled to FMLA protection.

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NJ Executive Order 192 states:

• Employees must wear a mask when entering a worksite.
• Employees can remove their masks if they work at a workstation more than six feet away from someone or they are alone in a walled off office.
• Employers must make available, at their expense, masks for employees. However, an employee can wear their own masks if they desire.
• Employers can deny entry to an employee who refuses to wear a mask unless the refusal violates state or federal law.  For example, if the person has a disability, an employer may be required to provide the employee with a reasonable accommodation unless it creates an undue hardship for the employer.  An employer can ask the employee for medical documentation to support their disability claim.

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Federal and state laws provide pregnant women and new parents with maternity benefits and protections. The federal Family and Medical Leave Act (FMLA), provides eligible employees of covered employers unpaid, job-protected leave for up to 12 weeks.

Additionally, under the state New Jersey Family Leave Act (NJFLA), eligible employees may also take up to 12 weeks additional leave after their child is born to take care of the newborn child.

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The New Jersey Millville Dallas Airmotive Plant Job Loss Notification Act (NJ WARN) expands part of the Federal WARN Act by requiring notice even when the employment losses result from a sale of a business.

The NJ WARN Act also contains strict provisions with respect to job transfer circumstances and penalties for employers violating the Act.

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Arbitration is extremely expensive. As is clear from the name, arbitration is also arbitrary. Lastly, arbitration can often be inconvenient as well.

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Many people like arbitration because it is much faster than the New Jersey Court system. Arbitration is also much more straightforward than litigation. Finally, arbitration is confidential.

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Unsolicited comments of a sexual nature made on the job can leave an employee feeling threatened or uncomfortable, thereby giving rise to a claim of sexual harassment. Critical to prevailing on a claim for sexual harassment is establishing that a comment was unwelcome. When one party has made no effort to initiate the conversation, nor encouraged the conversation to continue, they may reasonably argue that the offensive and objectionable language was unwelcome.

Some comments may be more objectionable than others, but there is a wide range of conduct which constitutes as sexual harassment. Derogatory or lewd remarks about a coworker’s anatomy, making sexually suggestive jokes, or speaking freely about sexual exploits will understandably make many within earshot uncomfortable.

The order explicitly declares that gender identity is not a bar to military service. Additionally, it officially revokes President Trump’s Presidential Memorandum on Military Service by Transgender Individuals.

The American Bar Association (ABA) has a rule that prohibits lawyers from discriminating against or harassing any individual based on race, sex, religion, disability, pregnancy, national origin, ethnicity, age, sexual orientation, marital status, or socioeconomic status. The rule protects counsel, defendants, plaintiffs, witnesses, or any individual involved in the process of practicing the law from sexist, derogatory, or offensive verbal or physical actions. These and other condescending or inappropriate gestures are now defined by the ABA as “harmful verbal and physical conduct that manifests bias or prejudice toward others.” Lawyers who knowingly engage in this type of behavior are in direct violation of the rule and subject to penalty.

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There are measures that employers can take to protect employees and attendees at these parties. For example, employers may choose not to serve alcohol, or have less alcohol available, via a drink ticket system or otherwise.

Other actions can also prevent disasters, such as choosing not to hang mistletoe, avoiding dancing, hiring security or staff to keep an eye out for individual welfare, and making sure that staffers can invite spouses and family members. Increasing the amount of food that is available is also something that several employers are doing at these parties in order to ensure that everyone is well-fed.

Employees and attendees drinking and driving home is another serious liability concern. Make sure that someone is responsible for monitoring consumption and ensuring no one is driving home if they are unable to do so safely.

Forms of legal agreements may be misused to silence victims. One highly-publicized case is that of Harvey Weinstein, a Hollywood producer accused of sexually harassing various employees at his company for decades. He allegedly used non-disclosure agreements (NDAs) and confidential, out-of-court settlements to prevent these stories from being exposed. NDAs, out-of-court settlements, and arbitration agreements are all legal agreements that can hinder victims from speaking out publicly.

Employees are generally eligible if: (1) they have been exposed to the virus; (2) if they are caring for a sick family member; or (3) if school or day care closures require them to stay home and care for a child under 18. Individuals who work for a company with more than 500 employees are not eligible for the paid sick and family leave offered by this bill. Conversely, individuals who work for a company with fewer than 50 employees are eligible. However, the company’s owner may be able to file for an exemption from the Department of Labor.

The steps that you should take if your school reopens will be specific to you. If you are an individual who is considered high-risk for serious harm if you contract the coronavirus, you may be eligible to stay home under the Americans with Disabilities Act. You may also have the right to stay at home if you are sick, if you have been exposed to a sick person, or if you have to care for a child who is sick or whose school is closed.

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If you are caring for a child who is at home because of a school closure, or a loved one who is sick or under self-quarantine, you are likely eligible for compensation under the FFCRA.

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Most educators are covered under the Families First Coronavirus Response Act, which requires compensation for employees who are unable to work because they have a confirmed COVID-19 diagnosis, have coronavirus symptoms, or are caring for someone who is sick. You can read more about the details of the act on the website of the U.S. Department of Labor.

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Many employees who are unable to work right now, or who are unable to work at full capacity, are wondering whether or not they will get paid. Nearly everywhere, teachers who are salaried employees are still getting paid per the terms of their contract. If you believe that your contract has been violated, call an employment attorney.

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For employees who do not experience symptoms, or only mild, temporary symptoms, COVID-19 standing by itself would not constitute a “disability” under the ADA, as it would be considered a temporary, non-chronic impairment with little or no long-term impact (i.e., it would fall in the same category as a broken limb or influenza). These types of illnesses are not viewed as disabilities under the ADA. However, an employee may be entitled to ADA protections if their reaction to COVID-19 is severe or if it complicates or aggravates the employee’s other health condition(s) or disabilities. Employers are to assess whether an employee is “disabled” under the ADA on an individual basis, taking into account the aforementioned factors and any other relevant considerations.

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They may be able to. Normally, temperature checks constitute an overly broad medical exam under the Americans with Disabilities Act (“ADA”). According to the Equal Employment Opportunity Commission (“EEOC”), a medical examination may only be conducted for current employees if it is “job-related and consistent with business necessity.” In response to the 2009 H1N1 virus, the EEOC issued guidance that noted that if a pandemic became widespread in the community as assessed by state health authorities or the CDC, that employers may measure employees’ body temperature. However, if an employer decides that such testing is necessary, then the reasoning and supporting facts should be documented and preserved.

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It may. Pursuant to the NLRA, nonsupervisory employees (whether unionized or non-unionized) may have the right to refuse to work in conditions they believe to be unsafe. However, in order to refuse to work, the employee must have a “reasonable, good faith belief” that working under certain conditions would not be safe. Unionized employees undergo a separate analysis pursuant to Section 502 of the NLRA: refusal to work over safety concerns is protected for unionized employees if the assignment is “abnormally dangerous.” These employees must have a “good faith belief” supported by ascertainable and objective evidence that this working condition exists.

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Employers have an obligation to provide a safe workplace under the Occupational Safety and Health Act and other safety standards of OSHA.

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Yes. In the event of immediate or imminent danger, the Occupational Safety and Health Administration (“OSHA”) provides that an employee can refuse to work. The National Labor Relations Act (“NLRA”) also protects concerted activities by employees, which includes a refusal to work because of unsafe working conditions.

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Yes, as long as the employees’ duties lend themselves to telework. The Department of Labor again recently reiterated that requiring or promoting telework can be a valuable infection-control or prevention strategy.

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Yes. The EEOC has declared that the action of requesting that workers with symptoms go home is either (1) not disability-related action if the illness is akin to seasonal influenza, or (2) is allowed under the ADA if the illness is serious enough to pose a direct threat to employees or coworkers. Moreover, the CDC has advised that employees with symptoms of acute respiratory illness and a fever greater than 100.4 degrees Fahrenheit should stay home.

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Yes. Per guidance issued by the CDC, an employer should inform employees of potential workplace exposure. However, employers are still required to maintain confidentiality under the ADA, and should not identify the quarantined individual.

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COVID-19 related discrimination is prohibited in places of public accommodation. A place of public accommodation is a business that is generally open to the public, such as retail stores, schools, libraries, medical facilities, and recreational facilities. The guidance explains that a medical facility, for example, has a duty to not engage in disparate treatment of patients on the basis of race, national origin, or disability.

Landlords cannot refuse to rent a property to an individual or refuse to make necessary repairs to a tenant’s apartment because they fear contracting COVID-19 due to the individual’s race or national origin. The landlord may take reasonable steps to protect himself and other tenants from COVID-19, however, these steps cannot consist of actions based on race or national origin stereotypes.

Employers may be in violation of NJLAD and its bar on disability discrimination if they fire an employee for showing symptoms of COVID-19.

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In addition to coverage under the FFCRA, you may be eligible for benefits and protections as an employee under a number of state and federal laws, including the Family and Medical Leave Act (FMLA). COVID-19 worker benefits programs that may be available to you include:
-Unemployment;
-Paid sick time (state);
– Paid sick time (federal);
-Paid child sick leave; and
-Federal stimulus checks.

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No, you cannot. The FFCRA creates a discrimination claim which makes it unlawful for any employer to discharge, discipline, or discriminate in any other manner against an employee who takes leave in accordance with the Act.

New Jersey legislation prohibits employers from terminating or demoting employees who take, or request, time off due to an infectious disease, such as the coronavirus, that could affect others at work based on a written recommendation of a doctor. New Jersey legislation also precludes an employer from refusing to reinstate the employee to the position held when the leave commenced with no reduction in seniority, status, employment benefits, pay or other terms and conditions of employment.

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Yes. The paid sick time offered under the FFCRA must be granted in addition to any preexisting paid leave benefits. Your employer cannot modify its existing paid leave policy to avoid this obligation. Your employer also cannot require that you first use other paid leave benefits.

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The FFCRA gives employees who test positive for coronavirus the following benefits:

• Two weeks of paid sick leave at 100% of the employee’s salary.
• Pay is capped at 80 hours for full-time employees and at up to $511 per day.
• Part-time employees must be granted the amount of hours equal to the number of hours that the employee works, on average, over a two-week period.

In instances where the employee does not have coronavirus but a family member does, the FFCRA allows for:

• Up to ten additional weeks of paid family and medical leave at 67% of the employee’s salary.
• Pay capped at $200 per day.

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Visit the Department of Labor’s unemployment insurance page and see if you are eligible to apply for benefits. If you are furloughed or laid off, you are no longer eligible for paid leave under the law, though your employer must still pay you for any covered leave you had already taken at the time you were laid off or furloughed.

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Yes. If you work part-time, you are entitled to emergency sick time for the number of hours you work, on average, over a two week period.

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As of April 1, 2020, emergency paid sick time is available for immediate use by the employee, regardless of the length of employment. Also, your employer cannot make you to use your preexisting leave benefits before using any emergency sick time.

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NJ Executive Order 192 states:

• Prior to each shift, employers are required to conduct daily health checks of their employees to screen for potential COVID symptoms.  This can include temperature checks, self-assessment checklists and health questionnaires.
• If an employee appears to have COVID symptoms or answers positively to the daily health check, the employer must immediately send the employee home.  The employer must promptly notify all employees of any known exposure at the worksite.  Due to confidentiality laws, the employer cannot disclose the name of the employee.
• If the employee is diagnosed with COVID-19, the employer is required to clean and disinfect the worksite pursuant to CDC guidelines.

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NJ Executive Order 192 states:

• An employer is required to provide sanitation materials such as hand sanitizer and sanitizing wipes.  The employer must pay for the cost of these items. If you are a business that has been passing on these costs to your customers, this may affect you.
• An employer is required to ensure that employees are practicing routine handwashing.  This means providing employees breaks throughout the workday to wash their hands and providing access to handwashing facilities.  If gloves are required at the work site, the employer must provide the gloves.
• Employers must ensure that high-touch areas like countertops, doorknobs, and restrooms are routinely cleaned.

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NJ Executive Order 192 states:

• Employers must require employees, visitors and customers to wear masks when coming on premises. There are two exceptions:  if the visitor is under 2 or when it is not practical to wear a mask.  For example, someone does not need to wear a mask when they are eating or drinking or receiving a service that cannot be performed with a mask on.
• Employers can deny entrance to its workplace to any visitor who refuses to wear a mask. If a visitor says they have a disability and cannot wear a mask, the employer may be required to provide them with a reasonable accommodation if it does not place an undue burden on them. An employer cannot require a visitor to provide medical documentation of their disability unless required by state or federal law.

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NJ Executive Order 192 states: Employers must place employees at least six feet apart from one another. This includes during meetings, in restrooms and in breakrooms. If employees cannot be physically distanced, employers must require employees to wear masks and the employer must erect physical barriers between workstations.

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If you feel your employer is creating an unsafe workplace in light of COVID-19 you should take the following steps:

• Fill out an intake form on the Department of Labor and Workforce Development in New Jersey (NJDOL) website.
• File a complaint with OSHA.
• Refuse to work if all conditions outlined by OSHA are met.
• If confronted with an unsafe work condition, take the following steps:
  • Ask your employer to fix the hazard or assign other work.
  • Tell your employer you will not work until the hazard is fixed.
  • Remain at worksite until your employer tells you to leave.

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No. This is true even if your severance agreement contains provisions that attempt to prevent you from filing a charge with the EEOC, because this sort of provision is unenforceable. You cannot be required to return your severance pay (or other consideration) before filing a charge with the EEOC.

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Generally, a waiver in a severance agreement is valid when an employee knowingly and voluntarily consents to signing it. If an employee alleges that the waiver is not valid because he did not sign it knowingly and voluntarily, the analysis of the knowingly and voluntarily requirement is dependent on the statute under which suit was, or could be, brought.

Moreover, a valid agreement also must: (1) offer some sort of consideration, such as additional compensation, in exchange for the employee’s waiver of the right to sue; (2) not require the employee to waive future rights; and (3) comply with applicable state and federal laws.

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Yes. The federal law which protects against age discrimination is known as the Age Discrimination in Employment Act (“ADEA”). Workers age 65 and older may also be protected by the federal Americans with Disabilities Act (“ADA”).

Depending on the mediator, the parties may start in a joint-session, where the mediator talks to all parties about the process of mediation and what the goals of mediation are. Sometimes the mediator will ask the representation for each party to make a short statement of their client’s position. After this initial joint-session, the parties will break out into separate rooms for the majority of the mediation as the mediator travels back and forth between the parties. The parties may come together again at the end of mediation if the matter is resolved, to sign a mediation agreement and go through the terms of the agreement.

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The litigant plays a crucial role in the mediation process. While the mediator does not always request to speak with the litigant, the litigant should be prepared regardless. To that end, there are a number of things the litigant should do to prepare for mediation:

• Know your case
• Discuss how you feel
• How to dress

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Comments on social media that are “mere gripes not made in relation to group activity among employees” is not protected. Likewise, speech that is profane, defamatory or malicious against the company is not protected. NLRB v. Honda of America Manufacturing, Inc. An employer will also have a duty to act if the political speech infringes upon a protected group (based on their gender, race, age, disability etc.) and creates a hostile work environment for other employees.

Yes. The CDC has noted that individuals age 65 and over are at a higher risk for development of a severe case of COVID-19, should they contract it. Therefore, the CDC has encouraged employers to offer maximum flexibility to individuals age 65 and older.

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To handle the millions of people to be vaccinated, New Jersey is setting up 6 mega sites at the following locations:

• Atlantic County: Atlantic City Convention Center
• Bergen County: Racetrack at Meadowlands, East Rutherford
• Burlington County: Moorestown Mall
• Gloucester County: Rowan College of South Jersey, Sewell
• Middlesex County: New Jersey Convention and Exposition Center, Edison
• Morris County:  Rockaway Townsquare

The COVID-19 vaccine is being phased-in and is currently not available to the general public. Those working in healthcare and nursing homes are receiving the first vaccines. This will be followed by essential workers and those in high-risk categories. The general public is last in line and may not receive the vaccine until late spring/early summer, depending on the availability of vaccine supplies.

No. Under the law in New Jersey, most employees are entitled to workers’ compensation insurance, which pays for medical expenses and a portion of lost wages if a worker is injured on the job or suffers an occupational illness that they would not have contracted but for their workplace activity.

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Federal law entitles you to 12 weeks of maternity leave. The federal Family and Medical Leave Act (FMLA) entitles eligible employees of covered employers to leave for specific family or medical reasons. This federal law provides eligible employees unpaid, job-protected leave for up to 12 weeks. Under the New Jersey Family Leave Act (NJFLA), eligible employees may also take up to 12 weeks additional leave after their child is born to take care of the newborn child. Employees with newborn children may combine the 12 weeks of leave under the FMLA and the 12 weeks of leave under the NJFLA for a total of 24 weeks of leave to care for their newborn.

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Maybe.  New Jersey’s Workers Compensation Act covers personal injuries and death coming out of and in the course of employment.  However, the Act contains specific exceptions including for when intoxication and or the unlawful use of controlled dangerous substances are the cause of the injury or death.  If your workplace injury was caused by your intoxication, you may be denied workers compensation.

No, your employer cannot terminate you for using medical marijuana outside of work. The Compassionate Use Medical Marijuana Act (CUMMA) states it is unlawful to take any adverse employment action against an employee “solely on the employee’s status as a registrant” for medical marijuana. N.J.S.A.  24:6I-6.1.  Again, that does not mean an employer must allow an employee to use marijuana in the workplace or if the employee has a position that is safety sensitive. Wild v. Carriage Funeral Home, 241 N.J. 285 (2020).

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No. The proposed legislation from 2019 states that an employer cannot refuse to hire or employ any person or take an adverse action against any employee “because that person does or does not smoke or use marijuana items.”  The one exception is if the “employer has a rational basis for doing so which is reasonably related to the employment, including the responsibilities of the employee or prospective employee.”

Mediation is an out-of-court process where the parties to litigation go before a neutral third-party to attempt to resolve their claims.

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Typically many agencies organize end-of-year festivities in December during work hours. Many of these gatherings include decorations like Christmas trees and lights which have been deemed secular symbols by the Supreme Court. However the DOL recognizes the diversity of their employees and encourages supervisors to plan end-of-year functions in an inclusive spirit.

Religious expression and conversation is permissible in the same way that employees express themselves about non-religious issues. General discussion of religious views in cafeterias and hallways is permitted, as is clothing displaying religious messages.

However if the religious expression is directed at a co-worker and the co-worker asks that it stop, then the employee must refrain from such expression. If the unwelcome behavior continues it may be taken as unlawful religious harassment.

In areas accessible to the public it is important that there is no impression that the government itself is endorsing or sponsoring a religion or for that matter prohibiting religion. Favoring or disfavoring a particular religion is also not allowed. However personal religious expression is still allowed in public workplaces if it is clear that it is that of an employee acting in a personal capacity and not on behalf of the government. Employees may wear religious jewelry as long as there is no existing ban on jewelry for safety reasons. Specifically religious art or literature is not to be favored or disfavored in a public work area.

If you have signed an arbitration agreement and ultimately need to sue someone, you have waived your right to a jury trial. This means that even if you would like to bring a case in state court, you are not allowed to by operation of the arbitration agreement. In the event you attempt to bring a claim in the Courts of New Jersey, the opposing party can make a motion to enforce the arbitration agreement, and will likely be successful.

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Arbitration is an alternate form of dispute resolution. In arbitration, a party may file their claim with a private arbitration company, such as American Arbitration Association (AAA) or JAMS, Inc. The party does not file a case with the Courts of New Jersey. Instead of a trial of peers, arbitration involves a review and determination on the outcome of the matter by either an individual or panel of arbitrators. Like a trial, each side will have the opportunity to present their case. A determination will be reached by the arbitrator or panel which will be binding on all parties. The dispute cannot then be brought in court. It is fully and finally resolved through the arbitration process.

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Yes, New Jersey has protections against LGBTQ discrimination The New Jersey Law Against Discrimination (NJLAD) includes extensive and broad protections against discrimination in the workplace. The law prohibits employers from discriminating against their employees on the basis of sexual orientation and gender identity, among other qualifications.

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At minimum, sexual harassment harms the self-confidence of a person. It is well-known that confidence leads to increased productivity, so it should be a concern of the employer.

Beyond this, studies have shown that unwanted sexual advances can cause depression, PTSD, suicide, high blood pressure (HBP), and neck and spinal pain.

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Any judgment obtained in New Jersey Superior Court automatically creates a judgment lien on a debtor’s property that holds for 20 years, even if the ownership of the property changes. This means that the debtor cannot sell or refinance the property without first satisfying the judgment lien and also applies to any jointly held properties. Judgments that were obtained in Special Civil Part (small claims court) must have the judgment recorded in the Office of the Superior Court Clerk in Trenton to create a lien on the debtor’s real estate. It is essential to have an attorney do this quickly so that your judgment lien is recorded before any other competing recorded judgments and you can recover payment first.

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The first step in judgment enforcement in New Jersey is obtaining a writ of execution which allows for the seizure of property to satisfy the judgment. This can include:

• Personal property such as cars and equipment
• Business interest such as stocks
• Rental income that the debtor may receive
• Money in bank accounts

Some assets are excluded by law from confiscation to pay a judgment. These are the following:

• Disability payments
• Workers’ Compensation and retirement benefits
• Insurance policies
• $1000 of personal property

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New Jersey allows employers to take tip credits, therefore employers may pay less than minimum wage as long as employees’ tips make up the difference. If the employer’s pay and the employee’s tips together do not equal minimum wage, the employer must pay the employee the amount necessary to equal at least minimum wage for each hour worked.

New Jersey employers may participate in tip pooling, an arrangement in which employees split a portion of their tips with other employees. The federal Department of Labor only allows employees who regularly receive tips to take part in the pool. Employees must receive notice of the pool; cannot be required to contribute more than is customary and reasonable; must be able to keep at least minimum wage; and are not required to share tips with their employers or with employees who do not typically receive their own tips.

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Applicants who are initially denied may appeal their claims to the Appeal Tribunal of the New Jersey Department of Labor within seven days of delivery, or ten days of mailing, of the Notice of Determination. The Appeal Tribunal will then schedule a hearing which usually takes place over the phone.

Applicants should include a brief explanation of why they should receive benefits and may submit their appeal in person, by fax or by mail. Throughout the process, applicants should also be actively seeking work just as they would if their application was approved so that they may be eligible to receive retroactive benefits; if successful, claimants may receive current and retroactive benefits to compensate for the time of the initial denial.

 

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New Jersey applicants must have earned at least $8,300 during the base period of 12 months or have worked for at least 20 weeks, earning at least $165 a week. They must also have been out of work through no fault of their own. Also, for every week that an applicant claims benefits, he or she must be physically, mentally and legally able to work.

Applicants must additionally be actively seeking work and willing to accept suitable job offers. The DOL will consider an applicant to be actively seeking work if they have at least three employer contacts per week, including in person or over the phone contact as well as sending resumes. When deciding what constitutes a suitable offer, the applicant’s last job, job duties, distance from home and salary will be considered.

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New Jersey employers are required to pay at least minimum wage for hours worked up to 40 and then must pay at least time and a half for any hours worked over 40 in a week. Generally, the NJSWHL does not limit the number of hours an employee may be required to work and New Jersey employers may fire employees who do not comply with forced overtime.

The MORHCF dictates that health care facilities may not terminate hourly workers who are involved in patient care and clinical services if they refuse to work overtime unless there is an unforeseeable emergent circumstance or a national, state or, municipal emergency.

It states that the emergent circumstance exception should be used as a last resort and not simply because of chronic short staffing. Therefore, employers must exhaust reasonable efforts to fill vacancies before resorting to requiring employees to work hours in excess of a predetermined and regularly scheduled 40-hour workweek.

Yes, your employer can force you to work overtime. New Jersey employees often incorrectly assume that their employers may not force them to work overtime hours. The New Jersey State Wage and Hour Law (NJSWHL) states that employers may force employees to work overtime as a condition of their employment. This state law is in line with the federal Fair Labor Standards Act (FLSA), which allows employers to fire employees who refuse to work overtime.

Overtime Violations Occur Frequently But Must be Reported

Employees also frequently invoke the FLSA when they have worked an excess of 40 hours per week but were either unpaid for their overtime or paid less than the time-and-a-half they are guaranteed under the statute. Employers have proven adept at developing strategies for evading their overtime pay requirements; however, the law is firmly on the side of employees.

To that end, pre-shift and post-shift work must be counted towards a worker’s weekly hours. Such work can include a roll call or time spent preparing a work environment prior to the official start of the work day.

Additionally, some jobs require special gear or a uniform that can only be donned or doffed on-site. Employees are able to count this time towards their weekly number of total hours worked. Employers are also barred under the FLSA from automatically deducting a lunch break from an employee’s schedule when the employee did not take one, and docking a worker for short breaks of less than 20 minutes.

Schedule a Consultation With Experienced Overtime Attorneys Today

Being denied the wages that you are owed, being asked to work overtime without compensation, or being denied time off that you are legally entitled to is more than frustrating — it is illegal.

If you believe that your employer has violated your rights under state or federal wage and hour laws, we urge you to reach out to us. We have years of experience representing employees and will fight for your wages. With offices in Red Bank, NJ, Marlton, NJ, Newark, NJ, New York, NY, and Philadelphia, PA  we serve clients throughout those states. Contact us for a free consultation today!

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In New Jersey a mandatory break law applies to minors under the age of 18. After five consecutive hours of work, employees under the age of 18 must be given a 30-minute meal period. All other employees over the age of 18 are not subject to the mandatory break law, but rather only to company policy.

You should be getting paid for your breaks depending on whether or not they are considered bona fide meal periods according to federal law. Federal law defines bona fide meal periods as rest periods, which are usually at least 30 minutes in duration. Employees are considered working if they are required to perform any duties, active or inactive, while eating. For example, if a receptionist is required to eat lunch at their desk, they are still considered to be working and not completely relieved of their duties. Therefore, in order to constitute as a bona fide meal period which does not have to be compensated, an employee may be on the premises but must not be performing any duties while eating.

New Jersey employers are not required to provide employees with rest or meal periods, although they must still comply with federal law should they choose to do so. Federal law defines bona fide meal periods as rest periods, which are usually at least 30 minutes in duration.

The one exception is a mandatory break law that applies to minors under the age of 18.

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Quid pro quo is a Latin term meaning “this for that.” It occurs when the victim’s response to sexual advances is used as a basis for employment decisions, such as the firing or demotion of the employee. Such sexual advances do not have to be overt; the request can be hinted at or communicated non-verbally. If a supervisor offers an employee a raise that is contingent upon his or her agreement to engage in sexual acts, that behavior constitutes quid pro quo harassment.

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In business, NDA and other types of confidentiality agreements serve a valuable purpose. They prevent employees from sharing confidential, proprietary information that may jeopardize trade secrets and give competitors an unfair advantage. Confidentiality agreements typically include time restrictions on how soon an employee can begin working for a customer or competitor. They also protect any product or information workers produce during their employment

In New Jersey, seasonal work is any work that is done only at a certain time of year based on need or local circumstances, for 36 weeks or less in a calendar year.

The NJLAD prohibits disability discrimination in the workplace. Although it does not expressly require employers to provide reasonable accommodations for injured employees, New Jersey courts have consistently held that employers are held to such an obligation under the law. After receiving notification of an employee’s disability, employers must work in good faith with their employees to come up with reasonable accommodations. They are required to provide disabled workers with light-duty work when it would not impose an undue hardship on the operation of the business. Additionally, a temporary leave of absence generally constitutes a reasonable accommodation under the NJLAD.

Yes, New Jersey has a law for paid sick leave. Bill A1827 allows workers in the private sector to earn an hour of sick leave for every 30 hours they work. Businesses of all sizes would have to allow up to 40 paid sick leave hours. The time could be used to stay home for reasons of illness, to care for a sick family member, to attend school conferences or meetings, or to recover from domestic violence. The few exemptions included in the bill are for certain construction employees, public employees who already have generous sick leave benefits, and per-diem health care workers.

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Under the Federal Worker Adjustment and Retraining Notification Act (WARN), employers are required to provide 60 days advance notice of either a plant closing or mass layoff. This notice must be provided to the employees, any applicable unions, and government officials. The Act defines “plant closing” as a shutdown of a single site, which will result in the loss of employment for 50 or more employees within a 30-day period.

Additionally, a “mass layoff,” including a loss of employment of at least 33 percent of the workforce (with a minimum of 50 employees being affected); or a loss of employment of 500 or more employees at a single sight, within a 30-day period, is covered under the Act.

For those who may believe they are the target of age discrimination, the ADEA considers the following to be warning signs:

• Younger Workers: A company has a pattern of firing and replacing older workers with younger employees
• Age Related Comments: Age related jokes, talks of retirement, and demeaning tones are part of the work environment.
• Job Reassignment: An unpleasant job reassignment is often a sign that a company is trying to get a worker to quit.
• Unfair Performance Reviews: If performance reviews suddenly tank, chances are a company has decided to get rid of older, more expensive workers.
• Lack of Raises or Promotions: Promotions and raises are reserved for younger, less experienced staff.

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Employees who have read the arbitration agreement and agree to its terms can sign the agreement without an issue. However, those that do not agree with the terms should not sign the document without talking to their employer first.

Although it is possible that a flat-out refusal to sign could jeopardize employment, employees can try to negotiate to make the agreement more amenable.

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An arbitration agreement is a written contract in which parties agree to settle a dispute outside of court. Signing an arbitration agreement means that workers are essentially giving up their rights to sue over serious workplace issues such as:

• Sexual harassment;
• Gender and racial discrimination;
• Ageism;
• Breach of contract; and
• Wrongful termination.

Adult survivors of sexual assault have up to 37 years after turning 18 to file a civil lawsuit and recover damages for emotional or psychological injuries stemming from the abuse. Survivors of childhood sexual abuse can bring their claim up until they turn 55. Those over age 55 have up to seven years after they discover or realize they had been sexually abused to file a claim.

Whether or not you are a resident of New Jersey, you may be protected under the NJLAD if you effectively or remotely work in New Jersey.

No. New Jersey law prohibits any employer from screening a job applicant based on his or her salary or wage history, which includes asking the applicant to disclose prior wages and/or salaries as well as benefits. However, the law does allow the applicant to voluntarily provide salary history (only without prompting from the employer), and, if he or she does so, it allows the employer to verify that salary history. In addition, the law does not apply to promotions, nor does it override circumstances in which federal law mandates the disclosure of an applicant’s salary history.

Whistleblowers are employees who report unsafe or unlawful practices that occur in the workplace.

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Employees going through domestic abuse are eligible for NJ Family Leave pay, as well as for parents who have recently adopted a child.

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The weekly benefit rate for a Family Leave Insurance claim depends on an employee’s average weekly wage. As of 2019, employees on leave may receive up to $650 per week. As of July 1, 2020, employees will receive 85 percent of their weekly pay up to $860 per week.

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The NJ Family Leave Insurance program requires employers to integrate the Family Leave pay provisions into their current leave policies. They are also required to communicate the details of the new program to their employees. Employment policies must always be clearly displayed, and employee handbooks must also be updated to include the NJ Family Leave Insurance program.

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Yes. If you are taking leave in one continuous period, you must give your employer 30 days’ notice. If you decide to leave in an intermittent manner, you must give your employer 15 days’ notice.

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Employees eligible for NJ Family Leave are those who have worked at least 20 weeks in New Jersey in addition to earning at least $172 per week in the last 12 months. Once an individual receives Family Leave pay, they may receive it for six weeks in a 12-month period. However, beginning on July 1, 2020, employees taking leave will be given 12 weeks instead of six weeks. Employees caring for a sick family member may take leave for six consecutive weeks, for intermittent weeks, or for 42 intermittent days.

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The NJ Family Leave Insurance program is not funded by employers, it is funded by employee payroll deductions.

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When a family member becomes seriously ill, or if you have a newborn baby at home, you may need to take time off. NJ Family Leave Insurance allows you to do this. NJ Family Leave Insurance provides employees with wage replacement benefits for a limited amount of leave time. An employee may take time off work without worrying about their employer retaliating against them if they are covered under the New Jersey Family Leave Act (NJFLA). If an employer tries to retaliate against you for taking time off from work, you may have grounds for a lawsuit.

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The American Hotel and Lodging Association joined forces with leading hotel chains to set new standards for preventing sexual harassment and assault of the millions of employees working in hotels and resorts throughout the U.S. Their efforts culminated in a 5-Star Promise to create a culture where every hotel worker feels safe from harassment. The 5-Star Promise asks hotel management to:

• Create an environment that focuses on people first;
• Institute mandatory anti-sexual harassment policies;
• Introduce training programs to help workers recognize and prevent sexual harassment;
• Partner with outside agencies to receive ongoing guidance for keeping workers safe; and
• Provide personal safety devices to all hotel workers nationwide by 2020.

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On the federal level, the Age Discrimination in Employment Act (ADEA) prohibits employers from discriminating against employees or applicants based on their age who are at least 40 years old. This law protects employees by ensuring that employers treat employees over and under the age of 40 years old the same. For example, employees over the age of 40 must also be eligible for the same benefits as their younger counterparts, including health insurance and retirement packages.

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Examples of age discrimination include:

• Firing or not hiring an employee because of age;
• Facing harassment or cruel behavior because of age; and
• Getting turned down for promotions or opportunities due to age

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The “ABC” test is criteria used by both the New Jersey Unemployment Compensation Law and Wage and Hour Law to determine if a worker can be classified as an independent contractor.

Those criteria are that:

1. The worker controls and directs his or her work, not the employer.
2. The work is performed somewhere other than the primary business site and outside of all other places of business of the employer.
3. The worker would not lose income if the employment ended, in other words, they have another primary source of income.

All three requirements must be met in New Jersey, or the worker cannot be classified as an independent contractor and must be paid as an employee.

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An independent contractor generally enjoys far more autonomy than an employee. Independent contractors have the discretion to accept or deny an assignment as they see fit, they may set their own schedule, and frequently will provide their services to more than one company at the same time.

Conversely, employees provide their services at the direction of the employer. Unlike the independent contractor, employees lack the ability to make their own schedule, primarily report to their employer’s place of business during regularly scheduled business hours, and rarely perform similar services for another employer simultaneously.

The two classifications also differ in their tax treatment and overtime treatment. An independent contractor will not have any tax or FICA withholding, unlike an employee. Moreover, independent contractors are paid in accordance with the terms of their contract, and are therefore not entitled to overtime pay. Conversely, employees who are not managers or supervisors are entitled to overtime pay when working in excess of 40 hours in a given work week.

Individuals classified as independent contractors are also not afforded the same benefits as employees, as is demonstrated in Lowman. They receive no employment benefits, such as health and disability insurance. Additionally, independent contractors cannot seek unemployment benefits and also cannot file a workers’ compensation claim if they are injured on the job. They also enjoy far less protection from unfair work practices than an employee and may not avail themselves of state and federal anti-discrimination and workplace safety laws.

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Yes. Congress passed the Pregnancy Discrimination Act (PDA) in 1978. This act protects pregnant employees from discrimination in the workplace. Under this law, discrimination on the basis of pregnancy or childbirth constitutes unlawful sex discrimination. Therefore, employers may not discriminate against employees on the basis of pregnancy or pregnancy-related conditions.

Pregnancy discrimination includes:

• Firing a pregnant employee or not hiring a pregnant applicant;
• Harassing a pregnant employee;
• Not providing reasonable accommodations;
• Forcing an employee to take time off due to their pregnancy;
• Changing an employee’s role/responsibilities on their behalf because of pregnancy status;
• Rejecting pregnancy-related Medical Leave; and
• Retaliating against an employee who claims pregnancy discrimination

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Implied contracts are a confusing area of at-will employment which can be easily misunderstood, but can also frequently benefit an employee in employee/employer relations. There are two types of implied contracts, implied in-fact and implied in-law.

If a contract is implied in-fact, that means that the obligation is created between these parties due to the facts of the situation. If the parties’ conduct suggests an understanding, the law may find an implied in-fact contract. An example of this would be an individual being paid to mow a neighbor’s lawn several weeks in a row, only for the “employer” to refuse payment the fourth week. The law would find that an implied contract existed between the two.

An implied in-law contract is a situation in which the law imposes a duty to fulfill an unwritten contract. This can apply even if it is against an individual’s will. For example, if a doctor saves a bystander’s life, they are justified in billing the individual for their services.

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Some of the most common occurrences of wrongful termination are violations of public policy. This means that the employer’s reasoning for firing their employee violates clear, well-established and well-outlined public policies of the state. For example, it is illegal in most states for an employer to fire an employee for filing a Workers’ Compensation claim. In addition, this covers most discrimination laws. If an employee is fired on the bases of race, religion, gender, sexual orientation or similar reasons, that is considered wrongful termination.

Some of the actions that are considered pregnancy discrimination include:

• Firing a pregnant employee or not hiring a pregnant applicant;
• Harassing a pregnant employee;
• Not providing reasonable accommodations;
• Forcing an employee to take time off due to their pregnancy;
• Changing an employee’s role/responsibilities on their behalf because of pregnancy status;
• Rejecting pregnancy-related Medical Leave; and
• Retaliating against an employee who claims pregnancy discrimination

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A new amendment to the New Jersey Law Against Discrimination (LAD) signed by Governor Chris Christie before he left office mandates that employers provide breaks and a place for women to breastfeed or express their milk during the work day. Breastfeeding is now a protected activity, making New Jersey the 18^th state to give civil rights to breastfeeding mothers. The law covers all employers except those who can prove that accommodating a breastfeeding employee would create “an undue hardship on business operations.”

The new requirements for employers say that women must be allowed breaks during the work day to breastfeed or pump milk and there must be a private space for them to do so. This space must be near the work area and cannot be a toilet stall. The breastfeeding breaks do not have to be paid unless the employee had previously been paid during breaks.

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Under New Jersey’s Create a Respectful and Open Workspace for Natural Hair Act, employers cannot:

• Put forth appearance or grooming policies that limit or restrict hairstyles associated with Black ethnic, racial, and cultural identity
• Selectively enforce other types of policies that have the effect of discriminating against some and not others; for example, “professional appearance” requirements that allow some employees to maintain long hair while Black employees with braids are told to change their hairstyle
• Implement other policies that have the effect of limiting certain hairstyles associated with Black people in order to protect a certain “corporate image” or “customer preference”

In addition, any policies that have the effect of a limitation that are put forth based on health and safety must be rooted in “objective, factual evidence” that the hairstyle in question “presents a materially enhanced risk of harm to the wearer or others.”

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No. An employer may not exclude an employee from the workplace involuntarily due to pregnancy. Pregnancy discrimination is considered sex discrimination and is prohibited under Title VII of the Civil Rights Act.

Even if motivated by an altruistic concern for the employee, employers are prohibited from singling out workers on the basis of pregnancy for adverse employment actions. This includes involuntary leave, layoff, or furlough.

The ADA is a federal law which is meant to protect individuals with disabilities from employment discrimination, as well as discrimination in other areas of life. The ADA applies to all private employers, state and local governments, employment agencies, and labor unions with 15 or more employees.

Employees age 65 and older may have medical conditions that bring them under the protection of the ADA as individuals with disabilities. If this is true, these employees may request reasonable accommodation for their disability rather than their age.

The ADEA is a federal law which prohibits employment discrimination against individuals age 40 and older. For example, the ADEA would prohibit an employer from intentionally excluding an individual from the workplace based on his being 65 years or older. This prohibition would hold true even if the employer acted for altruistic reasons, such as protecting the employee due to a higher risk of severe illness from COVID-19.

Unlike the ADA, the ADEA does not include the right to reasonable accommodation due to age. However, it should be noted that employers are free to provide additional flexibility to workers age 65 and older due to their increased risk. This is not barred by the ADEA, even if younger workers are treated less favorably based on age in comparison.

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The employer should take the same actions it would if the employee was present in the workplace.  Employees are prohibited from harassing other employees through, for example, emails, calls, or video/chat communication.

Yes. Harassment may occur using electronic communication tools – regardless of whether employees are in the workplace, teleworking, or on leave – and also in person between employees at the worksite.

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Employees who shed light on wrongdoing by their employer are protected under state and federal law, and can receive:

• Reinstatement to their position;
• Back pay; and
• In some cases, a portion of whatever funds government officials recoup from the offending employer.

No. Employees who voice concerns about unsafe work conditions or object to illegal business practices cannot be fired on the basis of those complaints.

Known as whistleblowers, these workers are shielded from wrongful discharge by the New Jersey Conscientious Employee Protection Act (CEPA). Under the CEPA, employees are protected from retaliation such as demotion or termination after speaking out about misconduct by their employer.

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Employees who prevail on a wrongful termination claim under NJLAD are entitled to:

• Reinstatement to their previous position;
• Back pay;
• Damages for pain and humiliation;
• Reimbursement for the loss of fringe benefits; and
• Restoration of health and pension benefits.

Your employer cannot fire you because you are pregnant. That is discrimination. The New Jersey Law Against Discrimination (NJLAD) protects pregnant employees from discrimination due to their pregnancy or maternity leave. Learn more with our Comprehensive Guide to Pregnancy Discrimination.

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The medical conditions protected under the FMLA are specific and include:

• Birth of a child and time to bond with the newborn
• Placement and bonding time with an adopted child or foster care child
• Care of a spouse, child, biological or adoptive parent with a serious medical or health condition
• FMLA protection covers leave for an employee’s own serious health condition
• Care of a seriously wounded or ill spouse, child, or parent active in the military, including the National Guard, Reserves, or other branches of the military
• In the case of leave requested for an active duty military family member, the laws allow for 26 weeks of unpaid leave

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To be eligible under the FMLA, employees must have worked a minimum total of 1,250 hours for their employer to request FMLA leave. Under FMLA, employers with 50 or more employees within a 75-mile radius are required to provide 12 unpaid work weeks of leave to eligible employees annually.

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It is the federal Family and Medical Leave Act. Under the FMLA, eligible employees of covered employers are entitled to leave for specific family or medical reasons. This federal law provides eligible employees unpaid, job-protected leave for up to 12 weeks.

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If you have experienced or are experiencing sexual harassment in the workplace, it is important to take detailed notes of the harassment. These notes can help record sexual harassment activity. Your documentation should include:

• The nature of the sexual harassment
• Who was involved
• The location and time of harassment
• Any witnesses to the harassment

If you are comfortable doing so, ask your harasser to stop. You can also file a formal complaint.

No; product liability claims are often pursued under a theory of strict liability. In the context of a defective products case this means that so long as the plaintiff can prove that the product was defective and that the defect was the cause of their harm, they can hold the manufacturer liable.

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Under CEPA, employers cannot retaliate against employees who:

• Inform a supervisor or the public about an illegal activity, policy, or practice
• Provide information or testifies during an investigation, hearing, or inquiry involving the employer
• Provide information that the employer deceived or misrepresented a shareholder, client, investor, or patient
• Provide information about an activity on behalf of the employer that they believe to be illegal
• Object to, or refuse to participate in, an activity, policy, or practice that they believe is illegal or against the best interest of public health or safety

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You should tell your employer you are pregnant as soon as you are comfortable doing so. Your pregnancy should be an exciting and special time for you and your family. Your employer cannot discriminate against you for your pregnancy or your maternity leave.

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Yes, whistleblowers are protected from retaliation. The New Jersey Conscientious Employee Protection Act (CEPA) protects employees who come forward to report illegal and fraudulent activities their employer commits. CEPA is frequently referred to as New Jersey’s “Whistleblower Act” and prohibits employers from retaliating against employees who report such activity.

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Courts generally want lawsuits to be transparent to the public and complete anonymity is not always possible. However whistleblowers are protected in other ways: Under CEPA and the New Jersey Law Against Discrimination (NJLAD), employees who report unsafe or illegal activity in the workplace are protected from discrimination and retaliation.

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Discrimination in the workplace can cover a broad spectrum of activity specifically targeting members of the protected classes, including:

• Termination or Demotion
• Failure to Recruit or Hire
• Differential Treatment or Pay
• Withholding Training, Promotions or Career Advancement
• Being Subjected to Harassment or Increased Scrutiny
• The Existence of a Hostile Work Environment with Severe and Pervasive Harassment
• Terminating or Disciplining an Employee in Retaliation for Making a Complaint

The NJLAD “makes it unlawful to subject people to discrimination or harassment” based on a specific list of classifications. Under New Jersey law, the following types of discrimination in the workplace are prohibited:

• Affectional or Sexual Orientation Discrimination
• Age Discrimination
• AIDS or HIV Status Discrimination
• Atypical Hereditary Cellular or Blood trait, or Genetic Information Discrimination
• Breastfeeding / Pumping in the Workplace Discrimination
• Chronic Illness Discrimination
• Disability Discrimination, including Mental, Physical, or Perceived Disability
• Domestic Partnership or Civil Union Status Discrimination
• Gender Discrimination
• Gender Identity Discrimination or Gender Expression Discrimination
• Hairstyle Discrimination
• Liability for Military Service Discrimination
• LGBTQ Discrimination
• Marital Status Discrimination
• Medical Marijuana Discrimination
• National Origin Discrimination or Ancestry Discrimination
• Pregnancy Discrimination
• Race Discrimination, including Color Discrimination
• Religious Discrimination
• Sexual Harassment in the Workplace
• Transgender Discrimination

New Jersey Senate lawmakers recently passed a bill to augment the robust framework of the NJLAD and prohibit discrimination based on height and weight. Although the Bill has not yet been introduced in the State Assembly, which needs to occur before the legislation can be approved, it is a step in the right direction for anti-discrimination law.

Employment discrimination is a serious problem that can damage morale, diminish the dignity and livelihood of employees, and result in costly lawsuits. Our employment discrimination attorneys in Red Bank, Marlton, Newark, New York, and Philadelphia can take action. We will provide you with a clear and candid evaluation of any potential employment discrimination claims, as well as all legal options and recourse available to you. Contact us today. 

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Pregnant women and new mothers are protected under federal and state law and should not need to worry about what happens to their job while they are on maternity leave.

Upon returning to work, new mothers are entitled to their previous position without termination, demotion or reduction of salary. Your employer cannot eliminate your position or terminate your role because you took pregnancy leave. If the position is no longer available due to shifts in the company, the employer must offer the employee returning from leave a position similar in salary, benefits, and status.

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Currently, there is no requirement that employees take the COVID-19 vaccine as a condition of employment. However, if you work in healthcare or the nursing home system, your employer may require the vaccine because you are at high risk for getting and spreading COVID-19.

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. Additionally, employers have an additional consideration if their 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.

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Employees (union and nonunion) who share information in an effort to improve their working conditions are protected under The National Labor Relations Act (NLRA).  This is considered “protected concerted activity” because it is for the “purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.” www.nlrb.gov.

Examples of protected concerted activity may include employees discussing their concerns about salary or working conditions or employees wearing political buttons or shirts referring to a topic protected by the NLRA, such as “X candidate favors improved healthcare.”

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The New Jersey Conscientious Employee Protection Act (CEPA) protects whistleblowers who speak out about their employer’s potential legal violations. www.nj.gov. CEPA prohibits employers from retaliating against employees who have complained about a practice that the employee reasonably believes is unlawful or indisputably dangerous to the public health, safety or welfare.  Several federal whistleblower laws also protect employees from disclosing fraud such as the False Claims Act.

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No.  In 2013, New Jersey enacted a social media privacy bill to protect employees’ personal social media accounts. P.L. 2013. C. 155. The law prohibits employers from asking current or prospective employees for usernames, passwords, or access to a personal account. An employer cannot ask you to waive this right.

There are exceptions. An employer may be legally required to access an employee’s personal account to investigate work-related misconduct happening on that account if they have specific information of wrongdoing.  An employer can view an applicant’s or employee’s social media posts if they are in the public domain.  Finally, an employer can request access to e-mails and social media accounts that an employer provided.

In New Jersey, gender discrimination in the workplace can take many forms and can occur between an employee and an employer, coworker, or client, even if they are the same gender as the employee. Common examples of this type of harassment include the following actions based on gender:

• Termination or Demotion
• Failure to Recruit or Hire
• Differential Treatment or Pay
• Withholding Training, Promotions or Career Advancement
• Being Subjected to Harassment or Increased Scrutiny
• The Existence of a Hostile Work Environment with Severe and Pervasive Harassment
• Terminating or Disciplining an Employee in Retaliation for Making a Complaint

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You cannot be paid less solely because you are a woman. This is a form of gender discrimination and this is unlawful and illegal in New Jersey.

Gender discrimination is an employer’s unfair treatment of an employee or applicant based solely on the individual’s sex as it relates to hiring, benefits, terminations, or promotions.

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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.

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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). Most employees who get paid an hourly rate, as opposed to a monthly or annual salary, are eligible for overtime pay.

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If your employer has misclassified you as an independent contractor, it is possible to correct the classification. The simplest way to do this is simply to talk to your employer.

You can also contact the IRS directly. File form SS-8, which lets the IRS decide whether you are an employee or an independent contractor.

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According to New Jersey law, employees have the right to the following protections and benefits:

• Overtime pay for hours they work beyond 40 hours in a week
• Having the employer pay half of the employee’s Social Security and Medicare taxes
• Hourly pay of at least $12 per hour, as of 2021
• Paid breaks and sick leave
• Workers’ compensation coverage, such that your employer pays for the treatment of injuries you sustain on the job
• Unemployment benefits

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No, an employer cannot deny you accommodations at work due to pregnancy or related medical conditions. Under the New Jersey Law Against Discrimination (NJLAD) and other federal statutes including the US Pregnancy Discrimination Act (PDA), your employer has a responsibility to prevent pregnancy discrimination and provide pregnant employees with reasonable accommodation. A pregnant woman has the right to work so long as she is able to perform the functions of her job.

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The Americans with Disabilities Act (ADA) protects workers from employment discrimination based on disability status. This means that your employer cannot fire you or refuse to hire you simply because of your disability. In real life, things are not that simple. The law contains protections for workers as well as for employers. It does not protect every disabled employee from being fired from any job at any time for any reason. The details of the employment termination make all the difference. It depends when, why, and under what circumstances the employer terminated the worker’s employment. If you think your employer has subjected you to unfair termination because of your disability, contact a New Jersey employment lawyer.

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Yes. While your severance agreement may use broad language to describe the claims you are releasing (i.e., “all claims”), you are within your rights to file a charge with the EEOC if you believe you were discriminated against while you were employed or if you believe you were wrongfully terminated.

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