Discrimination

As reported throughout US media on October 27, 2023, workers over the age of 40 in California obtained a multi-million dollar settlement of their age discrimination claims in an alleged reduction-in-force matter. This matter is relevant to many workers in New Jersey because NJ employers will sometimes allege that they are implementing a bogus reduction-in-force, when in reality it is an illegal scheme to purge the workforce of older workers and replace them with younger workers. If you are a worker who is being let go, or was let go, in an alleged “reorganization” or a reduction-in-force, and you think your age is a factor in the termination decision, you should contact this office today for a free consultation. I have represented older workers for private and public employers, who were let go while younger workers were retained and was successful in recovering financial compensation for their emotional pain and suffering and moneys for lost wages, both for past lost wages and projected future lost wages.

In the recent California class action age discrimination lawsuit, a group of over 350 former workers alleged they were passed over for promotions in favor of younger workers despite their job performance being comparable to their younger counterparts.

CROWN is an acronym for “Create a Respectful and Open World for Natural Hair”. While employees in New Jersey are protected from race discrimination as to hairstyles in the workplace because the state passed its own version of the CROWN Act, there is yet no similar Federal protection for all workers nationwide. On December 05, 2019, U.S. Senator Cory Booker (D-NJ) unveiled a bill that would ban discrimination based on hair textures and hairstyles that are commonly associated with a particular race or national origin.

When people think of illegal workplace harassment they usually think in terms of sexual harassment. Newly proposed government guidelines that have not yet been passed, include harassment based on a person’s disability, race, color, national origin, age, religion, and genetic information in addition to sex harassment.

The new proposed guidelines define disability-based harassment as harassment based on the person’s physical or mental disability, and they offer more articulate definitions and examples than as contained in the current law. This includes harassment about an individual’s particular disability or harassment based on stereotypes about individuals with disabilities in general. It includes examples of harassments based on traits or characteristics linked to an individual’s disability.

Employees may sense they are being discriminated at work because of their age or other legally protected class. Yet they may think that they will never be able to prove discrimination against them if they cannot name a witness who would come forward. This is not true.

There is rarely a witness who may provide evidence of direct age discrimination. A smoking gun witness does happen more frequently than some might imagine, but the absence of witnesses or direct evidence does not necessarily mean a plaintiff cannot prevail in a discrimination case.

As reported in the press and other media this past week, a large class action law suit was filed against a major corporation alleging that hundreds of Black workers for an automobile manufacturer in California were regularly subjected to extreme racist harassment including use of the n–word. The lawsuit alleges that Black employees routinely faced racial slurs, including variations of the n-word, and graffiti depicting nooses, swastikas and more were drawn across the facility’s public spaces.

Many persons who are not Black may be shocked at reading this reported news. They may be more shocked, and actually be in a state of disbelief, that this type of extreme racism in the workplace, including in workplaces in New Jersey, is more prevalent than as reported in the news.

Racial equilibrium in the US workplace including New Jersey is erroneously assumed by many to be the current state of relative societal norms.

Employees may sense they are being discriminated at work because of their age, race, sex, or other legally protected class. Yet they may think that they will not be able to prove discrimination against them if they cannot name a witness of the racist or sexist etc., biased behavior. This is not true.

There is rarely a smoking gun which may be incontrovertible evidence of direct discrimination, examples: a supervisor’s telling other employees, “We need younger workers,” or a manager giving directions to HR that, “[ A certain ethnic group] is trouble, don’t hire them,” or, “Women always make trouble, they are taking over,” or employees who testify that the employer uses racist epithets.

Age discrimination is a serious problem that affects many professional employees. While it is widely known that severe ageism is so pervasive it is nefariously considered “the business norm” in computer technology fields, it is less widely known that severe age discrimination is especially prevalent in the Chemical and Biomedical Engineering fields, where innovation and technology are constantly evolving. Prejudice in the sense of a judgment or opinion formed predicated on a person’s age is the basis of all age discrimination, which opinion proves on examination to be unrelated to the employee’s job performance or to be completely nonexistent. There is a perception, not based on fact but on rumor and disinformation, promulgated in part through the internet, that younger Chemical and Biomedical Engineers will be more on the cutting edge of the latest research than their older counterparts. At to just how young an age this discriminatory falsehood has taken hold, is alarming, as evidenced by United States Government statistics.

A bill called the SEC Whistleblower Reform Act of 2023 was introduced in the United States Senate to expand and protect the rights of SEC Whistleblowers. It was introduced in the Committee on Banking, Housing, and Urban Affairs on March 15, 2023. It enhances the Securities Exchange Act of 1934.

This bill, not yet passed into law, would expand and revise whistleblower protections applicable to individuals who provide information to the Securities and Exchange Commission (SEC) relating to a violation of securities laws. President Joseph R.

As a general rule, NJ executives have a greater duty to abide by the law than to be loyal to the company. This is because the law imposes certain obligations and responsibilities on executives that may override, when in conflict, with their loyalty to the company.

Corporate Executive Whistleblowers May Experience Conflicts Between Loyalty to Company and Upholding the Law

Executives in a company have broad sweeping responsibilities which at times may lead to inner conflicts between a duty to uphold the law and a misconceived duty of blind loyalty to the company. In New Jersey, whistleblowers are protected by the Conscientious Employee Protection Act (CEPA), which prohibits employers from retaliating against employees of all levels who act in good faith and in the public interest. An executive who discloses, or threatens to disclose to a superior or to a public body an activity, policy or practice of the employer, that he reasonably believes violates the law is engaged in protected whistleblowing activity.

If you are a NJ employee who reported to your employer about another co-worker general racist comments that you found disturbing, and your employer retaliated against you for such complaining, you may have a valid retaliation claim. If you complained to your employer about another co-worker racist comments about another employee who is not you or about a customer, and your employer retaliated against you for such complaining, you may have a valid retaliation claim.

A question that has been raised by many is if they reported to their employer about a co-worker’s sexist comments, lewd or otherwise, or age biased comments, or racist comments that were made in the workplace but not directed specifically at them, and their employer retaliated against them, could that be illegal retaliation? Under NJ Law, the answer is, “Yes”. If you are a worker who reported discrimination and your employer retaliated against you, you should contact this office today for a free consultation.

The NJ Supreme Court has made it clear that reporting biased statements against any protected class member is “protected” activity, and retaliation for such reporting may be actionable even when the biased statements were not directed at the reported employee or any identified member of that protected class.

There is an epidemic of companies who offer prospective or current employees a “Manager” position to avoid paying them overtime wages that the employers are legally obligated to pay the workers. Intentional job misclassification to avoid paying legal wages is constructive wage theft.

The Federal Fair Labor Standards Act (FLSA), its counterpart the Federal Code of Regulations and New Jersey Wage and Hour Law which incorporates much of the FLSA, define the circumstances by which employees are exempt from the right to receive overtime payments.

Congress enacted the FLSA to eliminate both “substandard wages” and “oppressive working hours”. If you think your employer is depriving you of overtime hourly payment, you should contact this office for a free consultation.