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Friday, September 30, 2016

Can I Sue My Employer for Violating My Free Speech Rights under the First Amendment? Part II


As stated earlier on this site, if you work for a private employer you may not sue your employer for violating your free speech rights under the First Amendment of the U.S. Constitution ( not to be confused with individual state constitutions) which establishes limits only on the government’s infringement of speech rights but not on a private employer’s curtailing of speech of its employees.

The  U.S.


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Saturday, September 10, 2016

Can I Sue My Employer for Violating My Free Speech Rights under the First Amendment?


The First Amendment to the U.S. Constitution reads:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

If you work for a private employer you may not sue your employer for violating your free speech rights under the First Amendment of the U.S.


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Monday, August 29, 2016

Sen. Cory A. Booker and Other Members of Congress File Brief to Clarify and Expand Civil Rights Protections for Lesbian Employee and Other LGBT


On August 25, 2016, five Members of Congress, Senators Jeffrey A. Merkley, Tammy Baldwin and New Jersey’s own Senator Cory A. Booker,  and Representatives David N. Cicilline and Mark Takano, signed an amici curiae brief in support of Plaintiff-Appellant Kimberly Hively's petition for a rehearing of the Seventh Circuit’s decision in her case against her employer, Ivy Tech Community College in which she alleges her employer discriminated against her because she is a lesbian. In that case, the Seventh Circuit upheld the lower District’s Court decision that Kimberly Hively was not discriminated in Violation of Title VII, on the reasoning that Title VII prohibits discrimination based on sex but not sexual orientation.
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Friday, August 26, 2016

Can My Employer Retaliate Against Me for Testifying Against Them on Behalf of a Co-worker?


New Jersey has several laws that prohibit an employer from retaliating against an employee who testifies against the employer in a lawsuit brought by another employee. This is good news including for New Jersey state employees who might otherwise have to rely upon First Amendment protections with mixed results. 

The most common law for protecting workers from retaliation by the employer if they testify against that employer in a lawsuit brought by a co-employee is New Jersey’s general whistleblower law,  the Conscientious Employee Protection Act (CEPA) N.


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Wednesday, August 17, 2016

My Boss Makes Jokes About My Age


Employees who are in the position of working for a supervisor who is younger than them and/or being the oldest workers in their department may find themselves being the brunt of ageist jokes. Calling employees, “grandpa,” and “old bastards ”and “like a bag of bones” are among some of the humor or name calling that was alleged in successful employment age discrimination cases. Employees who are among the oldest in their department may find themselves excluded not only from social gatherings with co-employees,  but also from employer sponsored quasi-social meetings and training sessions. While the former is not necessarily indicative of age bias on the part of the employer, the latter may have real consequences for the older employee who not only wants to be retained, but also wants to be promoted, and it could be an indicator of illegal age bias. 

One such case with alleged facts typical of age discrimination plaintiffs was settled August 3, 2016 with the judge dismissing the case August 4, 2016 while preserving the right of either party to reinstate the action within 60 days if the settlement was not consummated.


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Tuesday, August 2, 2016

When Women Don’t Act Like Women-Sexual Orientation and Gender Identity - LGBT Discrimination and Title VII’s Prohibition on Employment Sex Discrimination


There has been conflicting interpretations and opinions for decades on whether the Civil Right Act's Title VII prohibition on employment sex discrimination encompasses employment discrimination based on gender identity and sexual orientation. Unlike the New Jersey Law Against Discrimination, the Federal Civil Right Act's Title VII does not specifically include within the statute’s language, the protected characteristics of sexual orientation and gender identity.

Plaintiffs who lived in more conservative states that did not have strong state discrimination statutes protecting employees from LGBT discrimination in the workplace, were left with having to litigate LGBT discrimination claims under Title VII, with mixed results.


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Friday, July 22, 2016

My Boss Called Me “the N-Word’ - Blatant Racial Discrimination in the Workplace


Some African Americans still undergo a disturbing amount of blatant racism on the job, including having a supervisor call the employee the “N-Word” on job. As shocking as these facts are, incidents of blatant racism, such as the “N-Word” or even the extreme symbolism of a noose left laying around in the place of employment, are far more common than generally realized.

One such case, where the employee alleged that he was subjected to the “N-Word” on job,  was filed under the New Jersey Law Against Discrimination, “NJLAD”, in State Superior Court, with the author of this blog as the Plaintiff’s counsel, and the case settled for six figures.

Imagine coming to work each day for a supervisor who referred to you as the “N-Word”. Could anything be more demeaning or infuriating? The author of this blog currently represents a public state employee in a lawsuit filed in Superior Court, brought under the NJLAD, where the employee alleges he was subjected to being called the “N-word” repeatedly on a daily basis by his supervisor.


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Friday, July 15, 2016

Can My Boss Discriminate Against Me Because I Am Going Through a Divorce?

Your boss may not discriminate against you because you are going through a divorce. The New Jersey Supreme Court recently unanimously expanded state law to protect individuals going through a divorce or who are divorced or separated from discrimination based on their marital status. The New Jersey Law Against Discrimination (N.J.S.
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Friday, July 8, 2016

Can I Go to Court Rather than Arbitration? The Enforceability of Arbitration Clauses in Employment Applications


Employment applications sometimes have clauses stating that any dispute between the employer and employee arising out of the employment relationship can only be resolved by a means of alternative dispute resolution, such as binding arbitration, thereby preventing the employee from filing a discrimination lawsuit in State or Federal Court. Many legal minds, including Hope A. Lang, the author of this blog, think that such “ arbitration clauses” in employment applications are contracts of adhesion, and they should not be enforced, i.e., that a Plaintiff should be allowed to file a lawsuit in court rather than have the matter be resolved in binding arbitration.


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Friday, July 1, 2016

NJ Supreme Court Prohibits Employers from Shortening Statute of Limitations for NJLAD


New Jersey employers’ attempts to radically shorten the filing deadlines for discrimination lawsuits under the state statute have been thwarted by a recent NJ Supreme Court decision. Employment applications sometimes contain clauses that a dispute between the employer and the employee arising out of the employment will have a statute of limitations to file a lawsuit that shortens the two-year limitations period mandated under the New Jersey Law Against Discrimination( NJLAD). These contractual type clauses often limit the time an employee has to file an NJLAD claim to a period as short as six months. Whether an individual employer can so contractually bind an employee to give ups his rights to file a discrimination lawsuit under the NJLAD for the full two-year period, which period was intended by the NJ Legislature, is an issue that has been in the courts for several years. 

Finally on June 15, 2016,  the Supreme Court of New Jersey reversed two lower courts, and held that private contractual agreements, such as those that are found in employment applications,  cannot shorten the two-year statute of limitations to file a lawsuit under the NJLAD.

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