New York Attorney General Initiates Campaign Against Non-Compete Agreements; Why is New Jersey’s Attorney General So Silent (Again)?
This blog has discussed non-compete agreements a few times before, touching on how they can make it unduly difficult for workers seeking out new employment after leaving a job. Non-competes were initially intended to prevent sensitive company and client information from falling into the hands of a competitor when an employee changes companies. However, many employers have been forcing non-compete agreements on low-wage employees who have no knowledge of their employer’s trade secrets, preventing even hoagie shop workers from finding work in other sandwich stores. This exploitative use of non-compete agreements can lead to depressed wages, higher unemployment, and a less competitive labor market.
While these exploitative practices have proliferated, in a positive turn of events, two top political leaders recently launched public campaigns taking aim against them. One of those leaders is New York Attorney General Eric Schneiderman, who, in announcing his actions to limit the use of non-competes, declared that, “workers should be able to get a new job and improve their lives without being afraid of being sued by their current or former employer.” He further promised to introduce legislation about the matter sometime next year. Recognizing that non-compete agreements should be limited only to preventing high-level executives and company insiders from taking trade secrets with them to a rival employer, Schneiderman proposed that employees under a certain wage threshold should be exempt from having to adhere to them. The legislation he intends to introduce would also place a time limit on the restrictions set by non-competes; force employers to pay their potential employees more if they are forced to sign one; and require employers to provide any non-compete agreements to job candidates before making an offer of employment.
Vice President Joe Biden also spoke out against non-competes on behalf of the White House, adding federal pressure on state political authorities all over the country to take action. Biden wrote in his blog post that, “workers can’t reach their true potential without freedom to negotiate for a higher wage with a new company, or to find another job after they’ve been laid off.” The White House also expressed its support for Schneiderman’s proposed plans, along with endorsing a ban on non-compete agreements on employees working in the area of public health and safety. The White House also spoke out against non-compete restrictions placed on those who are fired without cause.
Unfortunately, New Jersey’s Attorney General has been woefully silent on this issue, and his inaction on this issue only reinforces the conclusion we have reached over the years that the Office of the New Jersey Attorney General is concerned primarily with protecting the interests of the government, rather than advocating on behalf of the State’s citizens. The fact that New Jersey employers can continue to get away with imposing non-competes on employees without justification is a matter of concern to all of us. If you feel that you are being unfairly restricted by a non-compete agreement, it is important to consult with an experienced New Jersey employment lawyer. For a consultation with Schall & Barasch, we encourage you to fill out our online Questionnaire, which you can find on the home page of this website under “Contact Us Now.”
Written by: Richard M. Schall, Esq.
Schall & Barasch LLC
110 Marter Avenue, Suite 302
Moorestown, NJ 08057
Change is in the air thanks to new Labor Department rules introduced by the Obama Administration. The new rules have significantly expanded the categories of workers who should be paid for working overtime. The threshold for salaried workers who are entitled to time-and-a-half overtime pay if they put in over 40 hours a week has risen from $23,660 to $47,476 or $455 to $913 a week. Those who earn more than this and managers are exempt from this particular rule, but will also be entitled to overtime pay, regardless of annual earnings unless they fall into one of the three exemption groupings – administrative, professional, or executive (supervisors) . Also, employees who are paid by the hour are entitled to be paid overtime no matter what they earn. Another change is that salaried workers earning below the lower threshold will be paid overtime. The new rules will apply from 1 December 2016.
Previously, only 7% of workers qualified for overtime pay. This is a big drop from the 62% who qualified in 1975. With the new rule, an additional 4.2 million workers will be earning overtime pay. According to the Department of Labor, it was time for change considering that the previous cap had not been revised in 12 years despite the considerable rise in the cost of living. Fair wage advocates also say that it will ensure that employers do not take advantage of workers by misclassifying them as managers.
What should you be seeing on your pay slip?
According to labor experts, companies have three options in regard to the new regulations. One is increase salaries to above the $47,476 upper limit in order to exempt them from the rule. The second option is to pay workers time-and-a-half for the extra hours worked per week, and the third is to ensure that workers do not work for more than 40 hours a week and to hire others to pick up the slack.
How do I ensure my boss complies
For young professionals in creative jobs and others where long hours are the rule rather than the exception, claiming overtime may not be straightforward. Some bosses may also be reluctant to comply or may threaten workers with losing their jobs to avoid paying them more.
If you work in New Jersey and you find yourself in this situation, Schall & Barasch LLC are the employee rights advocates to contact to find a proficient and experienced New Jersey employment lawyer. You may also see changes on your pay slip but they may not be as required. Again, a New Jersey employment attorney from Schall & Barasch can advise you on what should be coming your way with the changes. Contact us and let is help you the pay you deserve.
May 2016 White House Report: 30 Million American Workers Now Covered By Non-Compete Agreements
May 21, 2016
Here at Schall & Barasch, we have far too often seen the harsh, and sometimes devastating, effects non-compete agreements can have on New Jersey employees.
A report by issued by the White House, on May 5, 2016, has focused some new attention on the alarming spread of non-compete agreements across the country. Here are some of the highlights from the report:
- Some 18 percent, or 30 million, American workers are currently covered by non- compete agreements. Even more workers, roughly 37 percent, report having worked under a non- compete agreement at some point during their career.
- A study of the issue by a prominent laws firm found a 61 percent rise from 2002 to 2013 in the number of employees getting sued by former companies for breach of non-compete agreements.
- Many workers do not realize when they accept a job that they have signed a non-compete, or they do not understand its implications.
- Many firms ask workers to sign non-competes that are entirely or partly unenforceable, suggesting that firms may be relying on a lack of worker knowledge. For instance, California workers are bound by non-competes at a rate slightly higher than the national average (19 percent) despite the fact that, with limited exceptions, non-competes are not enforced in that state!
- Worker bargaining power is reduced after a non-compete is signed, possibly leading to lower wages. When workers are legally prevented from accepting competitors’ offers, those workers have less leverage in wage negotiations and fewer opportunities to develop their careers outside of their current firm.
- Fourteen percent of workers earning less than $40,000 have signed non-competes, although those workers possess trade secrets at less than half the rate of their higher-earning counterparts. When an employer requires low-wage employees to sign non-competes, it can effectively limit the ability of their workers to bargain for higher pay by making it harder for them to find new jobs.
- At least 37 percent of workers are asked to sign non-compete agreements only after they have already accepted the job offer. In cases where job offers have already been accepted, workers often have less leverage to bargain, in part because they may have already turned down other job offers.
- Many workers report that they do not realize when they accept a job that they have signed a non- compete, or that they do not understand its implications. Workers are often poorly informed about the existence and details of their non-competes, as well the relevant legal implications.
- Very few states have legislation prohibiting the enforcement of non-competes when an employee is fired without cause. [Unfortunately, here in New Jersey, I would note, an employee can be fired even “without cause,” and the courts will still enforce the non-compete agreement.]
- Some states are taking action to curb the spread and abuse by employers of non-compete agreements. For example, in 2008, Idaho passed a law that restricts non-competes to “key employees.” “Key employees” are those who “by reason of the employer’s investment of time, money, trust, exposure to the public, or exposure to technologies, intellectual property, business plans, business processes and methods of operation, customers, vendors or other business relationships during the course of employment, have gained a high level of inside knowledge, influence, credibility, notoriety, fame, reputation or public persona as a representative or spokesperson of the employer, and as a result, have the ability to harm or threaten an employer’s legitimate business interests.”
- New Hampshire passed a law that went into effect in July 2012 that requires employers to provide a copy of any noncompetition agreement to employees before or contemporaneously with any offer of employment. The failure to abide by this notification requirement renders any such agreement void.
I would note that, despite successful efforts in some states to curb the abuse of non-compete agreements, the New Jersey Legislature, particularly with Governor Christie remaining in office, has yet to get any such legislature enacted into law, with the most recent effort being the unsuccessful attempt in 2013 to pass legislation making non-compete agreements unenforceable against employees who have been approved for, and are receiving, New Jersey State unemployment benefits.
As we have urged in our other discussions of New Jersey non-compete agreements on our website, any employee saddled with a non-compete agreement should follow our list of “Do’s and Don’ts.” For more information, or a consultation, please contact us at 856.914.9200 or click on the links on our website to “Contact Us Now,” or “Help Us Understand Your Case.”
If You’ve Been Sexually Harassed At Work, What To Do (And What Not To Do!)
written by Patricia Barasch
It’s hard to listen to the news these days without hearing about sexual harassment in the workplace. Unfortunately, it seems to be a fact of workplace life reaching all types of job sectors and industries and implicating all levels of employees. While employers are legally obligated to maintain policies prohibiting harassment in the workplace, and are further obligated to take prompt and effective remedial action in response to an employee’s complaint of harassment, harassment in the workplace continues to rear its ugly head. In addressing sexual harassment occurring in the workplace, there are important considerations for employees to be aware of which will be discussed below.
These considerations are the result of a 2015 ruling by the New Jersey Supreme Court in regard to hostile work environment sexual harassment cases alleging supervisor harassment brought under the New Jersey Law Against Discrimination. In Aguas v. State of New Jersey (2015), the New Jersey Supreme Court adopted the test previously established by the Supreme Court of the United States in Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton for imposing liability on employers for a supervisor’s sexual harassment and held that an employer can rely upon the company’s anti-harassment policy as an “affirmative defense” to an employee’s claims of negligence or vicarious liability brought under the LAD. In other words, employers may now potentially avoid all liability for a supervisor’s sexual harassment when the complaining employee suffers no tangible adverse employment action, by asserting that it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior,” and “the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”
In light of New Jersey Supreme Court’s ruling in Aguas, what should you do (and not do) if you find yourself in a situation where you have been subjected to sexual harassment and/or a hostile environment in the workplace? Here are some important considerations to be aware of:
- Document any harassment that occurs;
- Get a copy of your employer’s policy prohibiting discrimination and harassment in the workplace and ascertain the procedure to follow to file a complaint of harassment and make sure you follow it;
- If the employer’s policy is not readily accessible, make a request for it in writing;
- Make your complaint in writing. You may also complain verbally but be sure to also make your complaint in writing and keep a copy of it for your own records;
- Be specific in your complaint about the harassment to which you have been subjected;
- If the employer requests that you participate in an investigation following your complaint, including an interview, you should agree to participate. Do not refuse to participate on the grounds that you provided all the information in your complaint. Under the law, employers have an obligation to conduct a prompt and effective investigation, and your refusal to participate will likely be held against you;
- If there are witnesses to the harassment, be sure to provide the names to your employer. Again, it is best to provide any such information in writing and keep copies of any such information provided. Likewise, if you have documentary evidence of the harassment (e.g., emails you received, or written notes left for you, etc.), provide such information to your employer and keep copies of any information provided. In providing documentary evidence, be sure not to access “confidential” information and/or information to which you do not have access in the performance of your job;
- Following your complaint, keep notes about the employer’s investigation, as well as any retaliatory action following your complaint. If you are subjected to retaliation, make an additional written complaint of retaliation using the employer’s designated policy and procedure to do so;
- Don’t quit your job or resign your position. This is hardly ever a good idea, and if you do quit or resign, you are making it much more difficult to bring any kind of legal action to obtain relief. In addition, if you quit, you are putting your eligibility for benefits under New Jersey’s Unemployment laws in jeopardy;
- If your employer doesn’t take prompt and effective action to address your complaint of harassment and/or remedy the situation, obtain legal advice. You have the right to work in an environment free from sexual harassment, and an employer is obligated by law to take prompt and effective action to both prevent and remedy harassment.
If you believe you have been the victim of workplace sexual harassment and are concerned that your employer hasn’t taken prompt and effective action to address your concerns, feel free to contact the experienced New Jersey workplace sexual harassment lawyers at Schall & Barasch LLC.
EMOTIONAL DISTRESS DAMAGES: HOW MUCH IS TOO MUCH? NEW JERSEY SUPREME COURT HEARS ARGUMENT IN EMPLOYMENT DISCRIMINATION CASE.
written by Richard Schall
On March 15, 2016, I had the pleasure of appearing before the New Jersey Supreme Court on behalf of the National Employment Lawyers Association of New Jersey in the case of Cuevas v. Wentworth Group. The case involved two brothers, Ramon and Jeffrey Cuevas, who alleged that they had been subjected to a hostile work environment on account of their national origin and then were terminated from their employment when they raised complaints about how they were being treated.
The facts of the case were pretty egregious. While at Wentworth, the Cuevas brothers, who both held executive positions, were subjected to repeated taunts and insults on account of their Hispanic origin: being referred to as “busboys,” carrying “switchblades,” and eating only “tacos and burritos.” When the humiliation became too much for Jeffrey Cuevas, he complained to upper management. Four days later, Jeffrey was fired, and shortly after that the Company fired his brother Ramon, who had protested his brother’s termination.
The case was tried before a jury, and, during the trial, each of the brothers testified to the jury about the emotional effects they had experienced as a result of both the harassment and then being fired after complaining about it. Jeffrey Cuevas explained the effect on him to the jury as follows:
Well certainly, immediately after, you know, you fall into depression obviously. You lose your confidence. Your ego is shattered because you, you think you’re a professional. You think that you’re being judged solely on your merits, solely on your performance. And you realize that just wasn’t the case.
So now again, you have to second guess all your current and previous business relationships to say gosh, you know, if it happened there at Wentworth, is it possible that’s going to happen again. So I’m always leery, always almost like watching over my shoulder. I can never really truly be, you know, honest with myself or, or, or [sic] think the person in front of me is honest. That’s a horrible way to live.
I want to trust people. I want to, you know, feel like people are being honest and trustworthy to me. And now I don’t. So I’m tainted, I’m tarnished now because of this.
After hearing all the testimony, and following two days of deliberation, the jury returned verdicts in favor of both brothers, awarding them compensation for their lost income, but also awarding Ramon $800,000 and Jeffrey $600,000 for their emotional distress damages resulting both from the hostile work environment they had been forced to endure while employed and from the effects on them of their terminations. Neither of the plaintiffs had offered any “expert testimony” in support of their emotional distress damages, as neither had consulted with a psychologist or psychiatrist following their terminations.
Wentworth then attempted to get these jury awards for emotional distress damages significantly reduced, arguing to the trial judge, that, under New Jersey law, a judge is permitted to reduce a jury award in the event he or she finds the award “shocking to the judicial conscience” or a “gross miscarriage of justice.” It argued that, without expert testimony, emotional distress damages awards should be limited to very modest, nominal ones.
The trial judge, however, rejected Wentworth’s argument, finding that, while the damage awards may have been “generous,” they were not so extreme as to “shock the judicial conscience.” In support of her decision not to reduce the awards, the judge noted that the Cuevas brothers had been very credible in explaining their emotional distress damages, and that the jury had been very attentive throughout the trial and well-reasoned in the various verdicts it had awarded.
After first appealing to the Appellate Division of the New Jersey Superior Court, and losing there, Wentworth took its case to the New Jersey Supreme Court. At the oral argument, the justices focused on the guidance they should be providing to the trial courts on how to determine if a jury award is “shocking to the judicial conscience.” A number of the justices raised concern about reliance on so-called “comparable cases,” questioning whether it is really possible to fairly compare two cases and two verdicts, where the plaintiffs and their presentations to the juries in those cases will be different; the effects of discrimination on the plaintiffs will be different; the juries will be different; and the counties in which the cases are heard will be different. On behalf of the National Employment Lawyers Association of New Jersey, I stressed that the “judicial conscience” of our courts must reflect the goal announced by the New Jersey Legislature in enacting the Law Against Discrimination: “to eradicate the cancer of discrimination.” If awards of emotional distress damages were limited to only nominal, modest awards, as urged by Wentworth, I argued that discrimination in New Jersey would never be “eradicated.”
We can likely expect a decision in the case from the New Jersey Supreme Court in four to six months.
Are Non-Compete Agreements Fair?
New Jersey Employment Lawyers Share Their Views:
Simply put, we don’t think so. But unfortunately, under the current state of New Jersey employment law, the courts will still enforce these agreements if, in the eyes of the judge asked to review them, they protect some “legitimate business interest” and are reasonable in their geographic scope and the length of time they remain in effect.
When we are called upon to advise employees here in New Jersey as to what to do when confronted with a non-compete agreement, the first thing we do is to closely examine the language of the non-compete. We have found, on more than a few occasions, that the employer has done a poor job of drafting the agreement, and that its sloppy language can provide loophole that will allow an employee the freedom to change jobs.
If poor drafting by the employer doesn’t provide a way out, then the next question is whether the non-compete agreement is really protecting some “legitimate business interest” of the employer, or, is it just being used to stifle competition.
So, what kinds of interests have the courts found worth protecting?
Typically, if you have gained access to an employer’s customer lists and worked closely with those customers (often in some sort of sales position), the courts in New Jersey will enforce a non-compete agreement on the theory that your employer has a legitimate interest in keeping you from moving to a new employer and taking its customers with you.
In the same vein, if you have been given access to your company’s secret formulas, technical data, or other proprietary information, New Jersey courts will often find that a basis to enforce a non-compete agreement.
However, we think there are other ways for a court to protect these “legitimate interests” of your employer without enforcing a non-compete agreement that can keep you unemployed, out of your chosen field of endeavor, and unable to support your family. For example, we generally don’t object to an employer requiring that for a certain period of time, if you accept a job with a competitor, you not have any dealings with the former customers of your prior employer for a limited period of time.
If you would like more information on how to deal with non-compete agreements in New Jersey, we strongly recommend you take a look at our earlier post on this website, entitled, NON-COMPETE AGREEMENTS : EMPLOYEE MISTAKES WHEN LEAVING A JOB.
Or, feel free to contact us directly for a review of your non-compete agreement by filling out the questionnaire by clicking on this link and answering a few questions, HELP US UNDERSTAND YOUR CASE.
Most employees in New Jersey receive a minimum wage of $8.38 per hour. For those who are tipped, however, the laws are different. According to the State of New Jersey Department of Labor and Workforce Development, employees who are regularly tipped as part of the job are entitled to just $2.13 an hour by their bosses. If their tips do not add up to meet or exceed the state’s minimum wage for the hours worked, their employers are required to make up the difference.
This law is common in many states across the country, as well as in New Jersey. Tipped employees like restaurant servers are supposed be able to make at least a minimum wage despite having their pay reduced before receiving tips. Understandably, many servers are not happy with this practice, since it is not guaranteed that they will receive tips from their customers. They may also say the work that restaurant servers perform is more difficult than working at other companies that typically pay no more than minimum wage.
Even so, paying less than $8.38 an hour is legal as long as employers are observant in ensuring their tipped employees make that amount in the minimum wage after tips. There are many ways that servers can be unlawfully cheated of the wages they’re entitled to, however. These might include:
- Being required by management to falsely report tips to make up the minimum wage, even if they did not receive sufficient tips;
- Performing more “side-work” than work that is tippable, including washing dishes and cleaning and stocking stations – a significant amount of side-work should be paid the full minimum wage;
- Being forced to share your tips with non-tipped employees, whether they work in the “back of the house” or are management;
- Being asked to work off the clock or to not be allowed to clock in until customers arrive;
- Tips being taken by the management without being distributed to the employees.
If you work in the restaurant field or another industry where you regularly receive tips, you are entitled to meet the minimum wage in your total earnings. You may need to speak to a New Jersey employment rights attorney if you believe you are not receiving a fair wage by law. Contact Schall & Barasch today.
Update on New Jersey Employment Law: Anonymous Letter Calling Fellow Employee “Time Bomb Ready to Explode” Does Not Justify Compulsory Psychological Exam
With all the terrible news about workplace shootings of late, important and interesting employment law questions arise: At what point can a New Jersey employer require an employee to undergo a psychological or psychiatric examination? Should there be any limits? Or does workplace safety simply “trump” any concern about privacy rights?
Well, a recent decision from the Appellate Division of the New Jersey Superior Court has provided some answers to these questions.
The case arose when the Lakewood, New Jersey Township manager received an anonymous letter from “a very concerned employee at Lakewood Public Works,” in which the author of the letter wrote as follows:
I am writing this letter because I am very concerned about the mental well-being of Paul Williams. We as co-workers dread being assigned with him and everyone knows he has some sort of mental issues and I truly feel it puts us all at risk with his tirades and outbursts on a daily basis like the one he had today with his union stewards [M.C., B.T., and P.R.] as well. The men and women here at Lakewood public works deserve to come to work and not be afraid of this man, we deserve a hostile free working environment and you as our employer are legally obligated to provide us such. For years we have complained about this man to former Director [J.F.], to our current administration in place now and it seems like a joke, it’s not. In 1992 there were over 750 workplace killings and this is no laughing matter; it’s very real and very serious. Williams is a time bomb waiting to explode and he needs help, and it’s your responsibility to ensure he gets it or provide some way for us to feel safe at work. I truly hope there is something you can do to ensure our safety, please don’t put the township’s fear of liability ahead of the employee’s safety.
Thank you for your time.
For eight months after receiving this anonymous letter, the Township took no action. But then, after the prolonged delay, it ordered Mr. Williams to attend a psychological fitness-for-duty evaluation and informed him that failure to attend would subject him to disciplinary action. After Williams refused to attend the examination, the Township instituted the threatened disciplinary actions and ultimately terminated Williams from his employment for “insubordination” in refusing to attend the psychological examination it had ordered.
As a public employee in the State of New Jersey, Williams had the right to appeal his case through the State’s civil service administrative hearing process, and he chose to do so. While the Administrative Law Judge who heard the evidence in the case found in Williams’ favor, noting that the Township waited eight months to conduct its investigation and ultimately lacked sufficient evidence of any real risk of injury to a fellow employee or the public, the Civil Service Commission overturned the Judge’s decision, ruling that the Township had the right to force Williams to undergo the examination.
The case then made its way to the New Jersey Superior Court’s Appellate Division, which, “in a case of first impression in New Jersey” held that the Township had overstepped its bounds and violated the provisions of the Americans with Disabilities Act in attempting to force Williams to attend the psychological evaluation and in then firing him for refusing to do so.
In a very thorough decision, the Appellate Division reviewed the provisions of the Americans with Disabilities Act that limit employers’ ability to require “medical examinations and inquiries,” as well as the guidelines issued by the Equal Employment Opportunity Commission in enforcing those provisions.
In summary, here’s what the New Jersey court made clear about what the Americans with Disabilities Act (the “ADA”) requires of an employer before it can order a medical or psychological evaluation:
- The ADA allows employers to require medical or psychological evaluations only when they can show they are “job related and consistent with business necessity.”
- Before ordering such examinations, under the ADA, an employer must have “a reasonable belief, based on objective evidence that (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will impose a direct threat due to a medical condition.” (emphasis added).
- If an employer wants to require an examination based on information received from co-workers, the information must be “reliable information from a credible third party.” (emphasis added).
- In order to determine if the source of the information is “reliable” and “from a credible third party,” the employer should consider “(1) the relationship of the person providing the information to the employee about whom it is being provided; (2) the seriousness of the medical condition at issue; (3) the possible motivation of the person providing the information; (4) how the person learned the information (e.g., directly from the employee whose medical condition is in question or from someone else); and (5) other evidence that the employer has that bears on the reliability of the information provided.”
Applying these requirements of the ADA to the Lakewood Township’s actions against its employee, Mr. Williams, the New Jersey Court found that Lakewood had failed to comply with the law. In finding in favor of the employee, the Court noted the Township could not likely have considered him to be a “direct threat to other employees or property” because it waited over eight months to demand that he attend the examination, during which time Williams continued to perform his duties without incident. The Court also noted that the Township had conceded at the hearing that, while Williams may have times been “confrontational,” he was “no different” in this regard than other employees. And, as to the anonymous letter, the Court held that, “it did not represent the type of reliable information from a credible source upon which the Township could reasonably rely in ordering a psychological examination” and was instead “exactly the type of innuendo and rumor that the EEOC has advised employers is insufficient to support a mandatory evaluation.”
Finally, in response to the Township’s argument that it was being “rendered powerless to take appropriate action,” the Court noted that it might have reached a different decision if the Township had conducted any reasonable investigation into the allegations of the anonymous letter, but that the Township had instead failed to interview any of the witnesses identified in the anonymous letter.
The takeaway here: When alerted to potential threats in the workplace, New Jersey employers have an obligation to conduct some reasonable investigation before simply demanding of an employee that he or she be examined by a psychologist or psychiatrist.
Work with skilled New Jersey Employment Discrimination Lawyers.
For anyone trying to get a job in today’s competitive job market, there is nothing more frustrating than having application after application rejected. If the applicant in question served time in prison for any reason, this scenario might be a lifelong nightmare. It is no wonder that some former inmates return to previous criminal activities, if they are unable to turn their lives around by supporting themselves and their families with a regular job.
Many states recently have begun adopting “ban the box” laws. What does this mean, exactly? If you’ve ever filled out a job application, you are probably familiar with the section that asks if you have been convicted of a crime – the question usually asked if the conviction was a felony. Depending on the job position or the prospective employer, checking “yes” on this box could result in an application immediately being tossed with no further consideration. It might not matter if the crime in question was for a single drug charge or a theft 20 years ago, with no further criminal activity since then.
Considering the unfairness this poses to those who are trying to make an honest living, New Jersey’s Opportunity to Compete Act took effect last March. Now, companies with more than 15 employees in most industries are prohibited from asking about an applicant’s criminal history on the initial application. The employer may ask about the subject during subsequent interviews and make a decision at that time. This law does not restrict employers from deciding not to hire a person based on his or her criminal history, but it gives the applic
ant a chance to make a good impression and explain the situation. It also allows the employer to make a more informed decision, instead of automatically judging the applicant.
If you have been unfairly discriminated against regarding your criminal history when you first fill out a job application, despite New Jersey’s ban the box law, you may wish to speak with an employment law attorney to see if you have a case.The experienced New Jersey Discrimination lawyers at Schall & Barasch, LLC can help. Call now.
This is a scenario that’s happened all too often to employees in any industry: You reported an instance of what you suspect to be illegal activity at work to management, or to the appropriate authorities, and the following week, you find that you work environment has suddenly become hostile; you’ve been disciplined for something trivial; or you’re given the pink slip without any reasonable explanation. Just because it still happens today, doesn’t mean that employer retaliation is acceptable. In fact, it’s illegal under New Jersey’s Conscientious Employee Protection Act, known as CEPA for short.
What are some of the other types of retaliation you might face from your employer? You might get passed up for that promotion you were promised a month ago or an anticipated raise might never come. You might be transferred to a different facility or given a pay cut for cooperating in an official investigation against your company. You and your coworkers might feel afraid to speak up about an injustice or safety issue because of the threat or implication of punishment.
Fortunately, you have legal protections if you are subjected to retaliation by your employer. Before going to the authorities, it would be a good idea to talk to your supervisor about the issue or, if you fear what he or she might do, talk to Human Resources. However, if discussions with your employer fail to resolve the issue and you still feel as if you were retaliated against, you should certainly talk to an employment rights attorney about your situation. Keep in mind that under CEPA, you have only one (1) year from the date of the retaliation, or you lose your right to file a lawsuit.
* In every year since 2014, the law firm of Schall & Barasch has been included in the Tier 1 list of best law firms in New Jersey practicing in the field of employment law on behalf of individuals. This list is compiled by U.S. News & World Report. A description of the selection methodology can be found at www.bestlawfirms.usnews.com/methodology.aspx.
** The methodology for the Avvo ratings of Richard Schall and Patricia Barasch can be found at www.avvo.com/support/avvo_rating.
*** In every year since 2009, Richard Schall has been chosen to be included on the list of Best Lawyers in New Jersey practicing in the field of labor and employment law. The Best Lawyers list is issued by Best Lawyers International. A description of the selection methodology can be found at www.bestlawyers.com/about/MethodologyBasic.aspx.
**** In every year since 2005, both Patricia Barasch and Richard Schall have been chosen to be included on the list of Super Lawyers in New Jersey practicing in the field of employment law on behalf of plaintiffs. The Super Lawyers list is issued by Thomson Reuters. A description of the selection methodology can be found at www.superlawyers.com/about/selection_process.html.
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