New NJ Law Bars Discrimination Against the Unemployed

Effective June 1, 2011, New Jersey will have a law that bars employers from advertising that the unemployed  need not apply.

The new statute, N.J.S.A. 34:8B-1, prohibits an employer from publishing in print or on the Internet a job listing providing that the job qualifications include current employment; that jobless applicants will not be considered; or that only currently employed candidates will be considered for the position. To comply with civil service laws, the new statute does allow employers to post job openings that are available only to its current employees.

Job seekers will not be allowed to sue offending employers directly, but violators will be fined  up to $1,000 for the first offense, up to $5,000 for the second, and up to $10,000 for each subsequent offense, payable to the state Department of  Labor and Workforce Development.

Meow! Cat’s Paws Lead to Employer Liability

What does a cat’s paw have to do with employment law? Over the past 20 years, a variety of lower federal courts had held employers liable for illegal discrimination based on the discriminatory animus of an employee who influenced, but did not make, the ultimate employment decision. This theory, dubbed “the cat’s paw” was adopted in March, 2011 by a unanimous court in Staub v. Proctor Hospital. Justice Scalia explained the feline reference in his opinion:

The term “cat’s paw” derives from a fable conceived by Aesop, put into verse by La Fontaine in 1679, and injected into United States employment discrimination law …in 1990. [citation omitted] In the fable, a monkey induces a cat by flattery to extract roasting chestnuts from the fire. After the cat has done so, burning its paws in the process, the monkey makes off with the chestnuts and leaves the cat with nothing.

Vincent Staub, a member of the U.S. Army Reserve, worked as an angiography technician for Proctor Hospital. His supervisors were irritated when Staub’s Reserve duty schedule interfered with the hospital schedule, and made a number of anti- military remarks. One of them referred to Staub’s military obligations as “a bunch of smoking and joking and a waste of taxpayers’ money.”

The supervisors made up a rule requiring Staub to stay at his workstation, and then claimed he’d violated it. Staub complained to HR that his supervisors were discriminating against him because of his military status. But the HR manager didn’t investigate Staub’s complaint. Instead, she used Staub’s  violation of the phony workstation rule to authorize and justify his dismissal.

The U.S.  Supreme Court upheld a  jury verdict in Staub's favor, saying there was ample evidence that not only were the two supervisors biased against Staub’s military obligations, but also that their actions “were causal factors underlying (the HR manager’s) decision to fire Staub.” The employer was held liable even though the HR manager who made the firing decision—the cat’s paw of our story-- didn’t have any discriminatory motives.

What this means to you:
The Staub ruling makes it clear that if the biased motives of a subordinate contribute to an adverse employment action, the employer can be liable for discrimination — even if the ultimate decisionmaker had no discriminatory intent whatsoever. And, employee complaints of discrimination and harassment cannot be ignored!

Employers must take a good look at a worker’s overall record before taking any adverse action, and the final decisionmaker is going to have to be sure that any action taken is due to documented. legitimate, non-discriminatory business reasons, consistently applied.

New Jersey Law Against Discrimination Clarified to Include Autisim as Disability

In one of his last acts as Governor, last month Gov. Jon Corzine signed an amendment to our  Law Against Discrimination to expressly include autism spectrum disorders in its definition of disability. This amendment was based on an October 8, 2009 report from the Adults with Autism Task Force. The full text of the new law is available here.

Thanks to my former law partner Gerry Resnick  at Resnick & Nirenberg for the tip on this new law!

Employers Be WARNed!

There’s no doubt that these are tough times. Last month the federal Equal Employment Opportunity Commission (EEOC) reported that workplace discrimination filings soared to an unprecedented level of 95,402 during fiscal year 2008, which ended September 30.

The EEOC statistics are astounding. Total claims went from 82,792 in 2007 to 95,402 in 2008, a 15 percent increase in just one year. Sexual harassment charges went from 12,510 in 2007 to 13,867 in 2008, the largest number of charges since 2002, sharply reversing a ten-year trend of flat or declining sexual harassment charges. Claims of age discrimination and retaliation charges saw the largest increases -29% and 23%, respectively. "The EEOC has not seen an increase of this magnitude in charges filed for many years," said EEOC acting chairman Stuart J. Ishimaru. The EEOC speculated that the surge in filings may be due to multiple factors, including economic conditions and employees’ greater knowledge of the law.

Then look at the unemployment statistics: As of March, the unemployment rate was 8.5%, the highest level in more than 25 years. More than 2 million people have lost their jobs since the beginning of the year. That’s 2 million potential plaintiffs.

If your organization is contemplating a large layoff or reduction in force (RIF), be WARNed! That means compliance with the Worker Adjustment and Retraining Notification Act (WARN). This federal law generally requires employers of 100 or more full-time employees to provide a 60 days’ notice of plant closings (termination of 50 or more employees) or mass layoffs (500 or more employees at a site or 50-499 employees constituting at least 33 1/3% of the full-time workforce at a site).

WARN says that an employer must provide written notice 60 calendar days before a plant closing or mass layoff to employees or their representative (union), the State dislocated worker unit (unemployment) and the local chief elected official. There are some exceptions, such as when the employer offers to transfer employees to a different site within a reasonable commuting distance, or the layoffs are due to unforeseeable business circumstances or a natural disaster. In addition, WARN has complex regulations regarding the timing and aggregation of terminations, definition of a "site" and similar details.

If that weren’t enough, a variety of states, including California, New York, and New Jersey, have their own “mini-WARN” laws that set different standards. For instance, New York law covers companies of 50 workers or more and California law coverage starts at 75, but federal law only applies at companies with 100 or more employees. New Jersey requires a more detailed notice than the feds, and New York requires 90 days’ notice instead of 60. The federal Department of Labor provides some online resources for employers facing layoffs, including links to state dislocated worker units, where employers can get information about any mini-WARN laws that might be applicable.

What this means to you: Obviously, employers should get expert advice from a local employment attorney when planning a mass layoff or plant closing. There's no doubt that many companies have a legitimate need to cut staff. The question becomes whether the companies have - and can prove - a legitimate basis for deciding who to keep and who to let go. It sounds clichéd, but now, more than ever, managers need to know the law on wrongful termination and the critical importance of documentation, and how to put that knowledge to practical use every day when tackling workplace problems.