Labor & Employment Articles by Lisa Gingeleskie

Although not required by federal or New Jersey law, many employers utilize policies, which govern appropriate dress and grooming standards for employees in the workplace. For example, when attending business meetings with visitors or clients, employers may require that employee attire reflect that of the individuals with whom that employee is meeting. In other circumstances, employees may simply rely upon common sense and good judgment regarding their appearance and clothing in the workplace or employers may choose to give employees examples of what is appropriate and inappropriate attire. In doing so, however, employers need to be mindful of the potential implications under federal laws such as Title VII of the Civil Rights Act of 1964 (“Title VII”), the Americans with Disabilities Act (“ADA”), or state laws like the New Jersey Law Against Discrimination (“NJLAD”).

Specifically, employers need to be aware of the following potential forms of discrimination that that may arise as a result of a dress code policy:

• Disability: A policy that does not take into account a reasonable accommodation to its dress code for an individual with a disability may lead to claims under the ADA or NJLAD, unless doing so would result in undue hardship.

Workplace harassment remains a harsh and unavoidable reality for employers. Given the recent #MeToo movement, employers can expect to see a continued rise in complaints concerning harassment, specifically sexual harassment. Although no guidelines can define sexual harassment with complete clarity, unwelcome sexual advances, requests for sexual favors, and other physical, verbal or visual conduct based on sex constitutes sexual harassment when:

1. Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, or;
2. Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting the individual, or;

Both New Jersey and the Federal government have established laws prohibiting workplace harassment in any form including discrimination that is based on a person’s race, color, religion, sex (including gender identity and pregnancy), national origin, age, disability, genetic information, sexual orientation, or marital status. In addition, these laws prohibit retaliation against any employee who invokes his or her right to a workplace free of discrimination and harassment.

Internal investigations by employers into allegations of unlawful harassment and other workplace misconduct are becoming more and more common in today’s work environment. The practice of conducting workplace investigations is often the best way to avoid litigation, as employees who feel their employers have heard their complaints and taken appropriate action are typically less likely to seek redress in court. In the event an employee does decide to pursue legal action, however, an employer’s internal investigation of a complaint can play a crucial role in developing a comprehensive defense against potential claims of liability.

Solution: Conduct Workplace Investigations In a Timely and Effective Manner to Minimize Risk of Legal Exposure to the Employer.

Employers must give careful consideration to questions asked during the hiring process. While most employers are aware that they cannot ask questions that directly relate to a prospective employee’s protected status (age, gender, religion, national origin, disability, etc.), employers also need to be mindful to exercise care when inquiring into a prospective employee’s criminal history and/or compensation history.

Criminal history inquiries and questions regarding a prospective employee’s compensation history remain an important tool for employers. They are a necessary and vital means by which employers may protect themselves against various forms of liability, including negligent hiring claims. Given the increasing risk of liability, however, employers should proceed with caution with respect to both inquiries throughout the application process.

Solution: Stay Abreast of Any Changes in New Jersey Law and Update Application Materials to Ensure Compliance with Those Changes.

An employer may find itself in a position where, without immediate relief, it may suffer a loss that cannot be made whole by monetary damages alone. For example, a party may feel that a breach of contract or impending breach of contract requires immediate action to protect its interests and prevent further harm. Under these circumstances, the employer may seek injunctive relief in the form of either a preliminary injunction or a temporary restraining order. Preliminary injunctions restrain a party from going ahead with a course of conduct or compel a party to continue with a course of conduct until the case has been decided. A temporary restraining order or a TRO is generally used to prevent irreparable harm and to preserve the status quo until the court decides whether or not to issue a preliminary injunction.

Injunctive relief is a unique remedy with difficult standards and potentially expensive consequences if the employer fails to make its case. New Jersey Courts are to exercise great “caution, deliberation and sound discretion” when considering a party’s request for injunctive relief. Sherman v. Sherman, 330 N.J.Super. 638 (Ch. Div. 1999). When determining whether to pursue this extraordinary remedy, it is recommended that employers seek the advice of counsel to assist in evaluating the likelihood of obtaining the relief sought against the costs associated with seeking such relief.

SOLUTION: Analyze the Likelihood of Obtaining Injunctive Relief Before Making a Determination.

The termination of an employee requires careful consideration of business and legal issues. There are various legitimate reasons as to why companies terminate employees including, but not limited to, misrepresentation of experience, education, or qualifications; inadequate job performance; violation of work rules or employer policy; unexcused absences and excessive tardiness; or a reorganization or other significant change eliminates a position or results in a layoff or reduction in force.

You may recall one of our earlier discussions, which focused on the process behind the decision to terminate, including the importance of documenting performance problems. Once the decision to terminate has been made, however, employers face the risk of defending claims against former employees alleging that their employment was terminated for an unlawful reason. Whether or not they have merit, wrongful discharge claims can result in lengthy and expensive legal battles, adverse publicity and damage morale in the remaining workplace.

Solution: Establish Legitimate Reasons for Termination and Deliver the Message Appropriately.

Employees’ use of social media in the workplace can be harmful to employers both legally and from a public relations standpoint. It can decrease company morale in the event employees choose to use social media as a forum to complain about their employer. It can also be costly to employers, as it may result in a loss of productivity during work hours. The use of social media also poses a threat that trade secrets or confidential information will be disclosed, even if done so unintentionally. Given these risks, employers may find themselves inclined to discipline employees for engaging in social media in the workplace, particularly when the subject matter is adverse to the employer.

However, employers seeking to discipline employees for social media posts must consider the application of the National Labor Relations Act (NLRA) to this area before doing so. The NLRA protects the right of employees to exercise “Section 7 Rights,” which guarantees employees the right to self-organize, form, join or assist unions, collectively bargain for changes in wages and working conditions, and engage in other “protected concerted” activities. What constitutes protected concerted activity is relatively broad, but must involve a term or condition of employment (wages, hours, etc.) and must occur for the group’s mutual aid and protection (more than one employee). An employer commits a violation when it engages in conduct that reasonably tends to interfere with the free exercise of employee rights regardless of the employer’s intent. Thus, an employer that discovers through social media that employees are undertaking activities to change their workplace, even if adverse to the employer, must be mindful not to make a negative employment decision based on this information or risk being in violation of the NLRA.

Solution: Adopt a Clear Social Media Policy and Apply it Consistently to All Employees.

On May 11, OSHA promulgated a new regulation imposing additional reporting requirements on employers. All non-exempted employers are already require to report information on work related illnesses and injuries to OSHA on paper forms, however, the new rule requires that certain submissions now be made electronically.

The newly promulgated regulation establishes three different categories of employers and imposes different electronic reporting requirements on each. Those non-exempted employers with 250 or more employees at an establishment must electronically submit certain information from the three reporting forms established by OSHA: 1) Form 300 – Log of Work Related Injuries and Illnesses; 2) Form 300A – Summary of Work-Related Injuries and Illnesses; and 3) Form 301 – Injury and Illness Incident Report.

Non-exempted employers with more than 20 employees, but less than 250 employees at an establishment, and who are engaged in a business designated in Appendix to the new rule, are required to electronically file information from Form 300A. Employers in this category include, among others, construction and manufacturing industries and many retail operations, such as department and furniture stores.

Title VII of the Civil Rights Act of 1964 requires employers to make reasonable accommodations for employee’s religious practices, including religious garments. In an 8-1 ruling, the United States Supreme Court recently decided an employer may be liable for religious discrimination if its hiring decision was motivated by the applicant’s possible need for an accommodation of religious garb. According to the Supreme Court, the applicant does not need to request or notify the employer of a need for religious accommodation for liability to ensue.

Facts: Samantha Elauf, a practicing Muslim, interviewed for a position in an Abercrombie retail store with Heather Cooke, the store’s assistant manager. Elauf wore a headscarf in the interview but never mentioned that it was part of her Muslim observance and that she would need accommodation for her religious garb.

Using Abercrombie’s system for evaluating applicants, Cooke gave Elauf a rating that made her eligible for employment. However, Cooke was concerned Elauf’s headscarf would conflict with Abercrombie’s “Look Policy” governing employees’ dress to ensure it is consistent with the image Abercrombie seeks to project. Under the Look Policy, employees are prohibited from wearing “caps” on their head. After Cooke informed the district manager that she believed Elauf wore her headscarf for religious reasons, the district manager noted that all headwear violated the Look Policy and directed Cooke not to hire Elauf.

To avoid the costs inherent in the employer-employee relationship, including employee benefits, workers compensation insurance, employment taxes and other liabilities, many employers secure the services of an independent contractor to avoid these liabilities.   There are significant risks with this approach, however.  An employer who misclassifies a worker as an “independent contractor” who, in the eyes of the law, is actually serving as an “employee” faces significant liability for unpaid overtime, employee benefits, payroll taxes, statutory penalties and other consequences.    To make matters worse, individuals who prevail on claims that they were misclassified as independent contractors are eligible for double damages and attorney fees from the employer.

Both at the state and federal levels, the courts have used various tests – applied to various legal contexts – to determine whether a worker should be classified as an independent contractor or an employee in the situation at hand.  While some tests result in a greater number of workers qualifying as independent contractors, the far narrower “ABC test” is widely regarded as a more difficult test for employers to meet when facing an independent contractor misclassification challenge.

On January 14, 2015 the New Jersey Supreme Court issued its opinion in , resolving some of the uncertainty by declaring the ABC test as the governing test to determine an individual’s employment status for purposes of wage-and-hour and wage-payment disputes under New Jersey law.