Happy Holidays

Update on Employment Law is taking a little holiday break and will be posting more regularly after the holiday season.  May you and your family have a happy holiday season.

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Act in favor of fair pay

Interested in the issue of fair pay for women but don’t know what to do?  Sign the petition over at the “Out of the Way of Fair Pay” campaign, the result of a collaboration between I Am Progress (part of the Center for American Progress Action Fund) and MomsRising.org.

The petition, which will be sent to the U.S. Chamber of Commerce, is in support of the Lily Ledbetter Fair Pay Act and the Paycheck Fairness Act, both of which the Chamber opposes.

Here’s the link to the petition: Out of the Way of Fair Pay

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Vera Glaser, a journalist who wrote about employment discrimination

From The Washington Post last Sunday, an article about the reporter Vera Glaser, who wrote a five-part series on employment and policy discrimination against women after a press conference with President Nixon.

In 1969, she asked the new president, Richard Nixon, why only 3 of his approximately 200 presidential appointments had been women. Here is an audio link to an interview with Glaser wherein she discusses that Nixon press conference.

Vera Glaser recently died at the age of 92.

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Quitting due to mental stress from job not enough for unemployment benefits

Yesterday the Superior Court of New Jersey, Appellate Division, decided a case involving an employee who voluntarily quit her job due to work-related stress and was then turned down for unemployment benefits.

The employee worked as a claims adjuster until May 2007, when she quit. Two months earlier, her job duties had increased because a co-worker went out on disability.

She argued that she left work because of mental health issues that began when her mother died and that worsened with her work-related stress. Both the Appeal Tribunal and the Board of Review found that she left without good cause attributable to her work and that as a result, she could not qualify for unemployment benefits. the test for whether a decision to quit work constitutes good cause is one of ordinary good sense and prudence.

Under the law, the employee needs to do whatever is necessary and reasonable to stay employed.

To show that a pre-existing medical condition was aggravated by a workplace situation, the claimant must show competent medical evidence as to that assertion. The evidence must be more than an equivocal statement.

In this case, the claimant presented evidence of an ER visit two years before she left work in which she told the nurse that she had stress at work and she had thoughts of killing her boss.  In addition, the ER records reflected her complaints about financial and housing problems.

The court pointed out that the employee stayed in her job for two years after her ER visit, which damaged her contention that it was the work-related stress that made her quit work.

The Appellate Division agreed with the Appeal Tribunal and the Board of Review and concluded that the employee was not eligible for unemployment benefits since she left work without good cause attributable to her work.

Goodman v. Board of Review, et al., Docket No. A-1260-07T2 (Sup. Ct. Nj, App. Div 2008)

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Restaurant employers, this is how serious some employment violations can get

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Today, the New York Times reports about the arrests of the two owners of the Saigon Grill in New York City. New York Attorney General Andrew M. Cuomo announced the arrests yesterday.

New York’s AG’s office is bringing a staggering number of criminal charges – over 400, according to the New York Times – against the two, who are a husband-and-wife couple.

A judge had already ordered the restaurant to pay its workers $4.6 million as part of a prior civil suit for violations of wage-and-hour laws, the New York Times reports.

These new criminal charges are related to the subject of the civil suit – the restaurant’s mistreatment of its workers. Each of the two is charged with 151 counts of falsifying business records, 46 counts of offering a false instrument for filing, and 45 counts of tampering with physical evidence. These counts come from the allegation that the couple provided the New York Department of Labor with fake payroll records during its investigation of minimum wage violations.

And then there are the counts for failure to pay wages, failure to keep records, and receipt of kickback wages. These counts stem from the couple’s alleged failure to pay minimum wages for 4 years to employees who were working 70 to 80 hours per week.

The AG’s office also alleges that the couple threatened to end delivery service at its restaurants after some of its delivery workers decided to file the civil suit mentioned earlier, leading to charges of witness tampering, coercion, and retaliation.

Finally, the AG’s office complains that the restaurant owners paid some employees off the books and failed to report their employment to New York State‘s unemployment insurance fund. The AG’s office states that the owners failed to report the employment of 65 employees, effectively cheating the New York State unemployment insurance fund and tax funds.

It’ll be interesting to follow this case through trial and see what happens. Restaurant employers, beware.

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New Jersey extends unemployment benefits a second time since July 2008

United States unemployment rates 1950-2005

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According to a press release dated 11/24/08, the New Jersey Department of Labor and Workforce Development is notifying unemployed workers of an unemployment benefits extension for workers whose benefits run out without having found a job.

The State of New Jersey is mailing letters to about 65,000 people, notifying them of this extension in unemployment benefits. Funding for the extension comes from the federal Unemployment Compensation Extension Act of 2008 enacted on November 21. This is the second federally-funded extension of unemployment benefits since July 2008.

Up to seven additional weeks of benefits are available under the new federal law, beginning 11/23/08. The benefits will not be retroactive.

People who are currently on unemployment should automatically qualify for extended benefits without having to file a separate application. Those whose benefits have already run out and who may be eligible for the extended benefits should receive instructions from the Department of Labor and Workforce Development on how to claim the extended benefits.

The current unemployment rate in New Jersey is 6.0 percent, which is below the national 6.5 percent rate, according to the Department’s press release.

You can find the press release here:  Notice of Additional Extended Unemployment Benefits Announced

Update: For information on your own unemployment claim or for general questions about unemployment, there is a list of phone numbers on the NJ Department of Labor and Workforce Development website. Check it out.

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Recent case illustrates proper analysis under New Jersey Law Against Discrimination

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This week, the Superior Court of New Jersey, Appellate Division, decided a case involving a claim under the New Jersey Law Against Discrimination (NJLAD) and outlined the burdens of proof necessary to make a proper case under the NJLAD.

Factual background

According to the decision, the employee worked for her employer for about 24 years, until her employment was terminated. She had supervisory responsibility over the production of commercial print advertisements.

Her performance was satisfactory until 2003, when she received 2 written warnings for her failure to complete certain printing jobs, for mailing a package to the wrong location, and for working the wrong job for 2 shifts.

In September of 2003, the employee met with her department and human resources managers about her performance problems. A memo from the employee’s file summarizing the discussion reflected several complaints about her job performance. Her department manager told her to improve her performance in the areas they discussed and stated that her failure to improve could result in termination of her employment.

In October 2003, the employee supervised a project that was sent to press without having been completed, costing the employer over $200,000 to re-run the project. The following month, her employer fired her, stating in a written notice that her poor performance was the reason for the termination.

Two years later, the employee sued her former employer under the NJLAD, claiming gender and sexual orientation discrimination and breach of contract. Losing at the lower court level, she filed this appeal.

Framework for analysis

The appellate court determined that the employee’s claims had no merit. The court outlined the proper framework for analyzing NJLAD claims: 1) The plaintiff must present enough evidence to establish a prima facie case of illegal discrimination; 2) The defendant must present evidence to establish a legitimate, non-discriminatory reason for the adverse employment action; 3) If #2 is established, the plaintiff must prove that the defendant’s reasons are a pretext for illegal discrimination.

Assuming that the employee in this case presented a prima facie case under #1, above, the defendant-employer successfully met its burden under #2, above, by establishing that it fired the employee because of her poor performance.

To meet the burden of #3, above, the employee needed to show not only that the employer’s reason for firing her was false, but also that the employer’s motivation in firing her was, more likely than not, discriminatory. Her evidence of discriminatory intent included the assertion that ever since she refused to take a severance package offered to her in 2002, the employer was out to get her. However, the court pointed out that if the employer had wanted to let her go in 2002, they could have done so. And, the company later gave her an opportunity to improve her declining performance.

As further evidence, the employee asserted that another employee who worked on the costly print job error was not disciplined. The court declared that an employer’s decision to discipline only one employee does not create a cause of action for discrimination under the NJLAD. Overall responsibility for the print-job error admittedly rested with the employee, who was unable to present facts to show discriminatory intent based on gender or sexual orientation.

Brunner v. Vertis, Inc., et al., Docket No. A-0036-07T1 (Sup Ct NJ App Div 2008).

Commentary

This case illustrates the importance for employers of documenting complaints and meetings about employee performance and of placing that documentation in the employee file. In this case, it looks like the employer’s good record-keeping was a saving grace for them in providing evidence countering the employee’s claims.

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