Employment Law for Businesses

THE NEW JERSEY LAW AGAINST DISCRIMINATION

The New Jersey Law Against Discrimination (“NJLAD”) was enacted in 1945, however, has been supplemented and amended, as N.J.S.A 10-5-1, et seq. to fulfill the provisions of the State Constitution guaranteeing civil rights, and prohibiting unlawful discrimination in employment.  Through time, the LAD has been construed in the Courts to maximize the protections afforded victims of discrimination.  Similar to its neighboring State of New York, the LAD does not forbid all discrimination, only that which is based on specifically enumerated characteristics, N.J.S.A 10-5-12 (a) – (e) – 5d – 4.1.  The Courts in both States keep moving forward such that these are no barriers to the application of Title VII defenses to a New Jersey LAD action.  More importantly, employers cannot be penalized when proper procedures are in place for corrective action and internal remedies.  Our laws in New Jersey and New York have so advanced that the State laws of anti-discrimination have the same substantive content as the Federal experience…the broadest defenses.

The LAD is supposed to be interpreted fairly and justly with due regard to the interests of all parties so as to leave open issues of proper defenses and legitimate non-discriminatory business reasons for its employment action and decision(s).  The burden of proving intentional discrimination always remains with the employee/litigant although the Courts recognize direct proof is not often available and circumstantial evidence may exist in its place.

A legitimate business judgement may be debated, then employees can argue pretext, or pretext in discriminatory layoff or reduction- in- force (RIF), mixed motive issues or retaliation or even whistleblowing.  The elements of tangible adverse employment action can be most frustrating to employers and businesses, large and small, as facts become exaggerated to prove a discriminatory animus was the true motivating reason for the employer’s decision.

Therefore, employers must have in place effective preventative measures to control the workplace.  These elements are critical and include:  well publicized written enforced policies; complaint methods (strict and formal); monitoring and oversight of policy enforcement; mandatory training and retraining; up-to-date corrective action methods; screening of jobs to determine fair obligation and job description; and accountability of higher level supervisors to recognize bias or reprisal in write-ups, undesirable reassignment, demotion or discharge.

What We Can Do For Your Business?

  • Eliminate or resolve any dispute through our investigation and assessment of the workplace.
  • Pursue conflict resolution, claims and lawsuits.
  • Review company policies and any manual; redraft, revise and supplement the critical provisions to abide the law.
  • Administer a zero tolerance program for harassment, sexual harassment and enforce non-discrimination, company-wide.
  • Coach and train supervisors and managers
  • Provide input for hiring, recruitment and retaining of employees.
  • Oversee litigation or serve as the Company Defense lawyer.
  • Negotiate compensation, releases and separation.
  • Implement proper layoffs and RIFs.

HARASSMENT/SEXUAL HARASSMENT THE HOSTILE WORK ENVIRONMENT

There are acceptable defenses to avoid vicarious liability to a “victimized employee” for an actionable hostile work environment, whether elements of discriminatory bias or retaliation or some harassing behavior, raises the “red flag” and more particularly when no tangible employment action has been taken, by any supervisor or higher authority, over the employee.  In other words, the employee asserts conduct or discriminatory harassment because of sex, race, religion, natural origin etc., which was not welcome by the supervisor.  Further, the alleged conduct was an express or implied condition for receiving a job benefit or avoiding a job detriment.  Frequently, an issue arises whether or not the harassing employee was actually the victim’s supervisor, who had any power to hire, fire demote, transfer or discipline or set a change in work schedule(s) or pay rates or make any other adverse decisions, which would affect the terms and conditions of that victim’s employment.  And when no tangible employment action has been taken, as above written, a defending employer may raise an affirmative defense to liability or damages asserted by the victim/employee, subject to proof by a preponderance of the evidence.

The defense requires two necessary elements: (1) that the employer exercised reasonable care to prevent and correct promptly any harassment or sexually harassing behavior, and (2) that the “victim employee unreasonably failed to take advantage of any preventative or corrective opportunities being presented.

Therefore, the employer must have a comprehensive anti-harassment policy with a stated written complaint procedure, applicable to all or most forms of perceived misbehavior in the workplace, which can reach notions of harassment, sexual harassment or hostile work environment.  Higher managers must be capable of discerning “bad behavior” and offer privacy, confidentiality and a positive outcome.  HR personnel have limited training to meet all such criteria.

We Offer These Services for a pro-active (defense) position against this type of accusation:

  • Administer a zero tolerance for harassment, sexual harassment.
  • Coach a non-hostile work environment.
  • Oversee or monitor the complaint process as a third party witness or participant.
  • Eliminate threats of workplace discontent, violence and provide workplace safety.
  • Become involved in any hearings or litigation.
  • Resolve claims and lawsuits.
  • Facilitate a proper separation package, release and results.
  • Offer skilled advocacy for any necessary litigation.

LABOR LAW:  START-UPS AND REORGANIZATION

This law firm has skilled attorneys to offer solid business law representation for a start-up company or for reducing the risks caused by a re-organization or reduction in force, commonly known as “RIFs”.  There must always be advance plan considerations and preparation for any structuring or re-structuring of the business.  We suggest that you retain knowledgeable legal Counsel to pinpoint the risks so as to avoid the challenges of an unwanted litigation.

The first step must be to determine a proper and defined business justification for any layoff; and who is the decision maker to decide a layoff is necessary.  What are the critical determining objective factors, as to why a layoff is necessary…economic forecasts, faltering or failed niche in the competing business environment, actual sales or results, overstaffing or redundant staffs caused by merger or acquisition, technical changes or other factors.  There must be fully observable, transparent objective criteria to determine what jobs will be eliminated.  This requires real scrutiny and job title analysis, grading and audits of wages, benefits and fringe benefits.  An independent source of scrutiny is mandatory to determine the actual job criteria is uniform and logical.  The same should apply to yearly audits of performance evaluation – there should be an independent  overseer or monitor.  Employers frequently pay a high price for mistakes made by their supervisor’s or higher managers self-serving considerations or bias.  Comparators outside the protected categories is a necessary requirement to prove consistent criteria was applied.  Additionally, there are analytical flaws to an examination which omits the total facts of sales, production, performance, discipline, customer interaction, co-worker interplay, ability to step into other functions, multi-tasked complex employees, team participation, ability to manage, seniority, skillsets, job description, acting titles versus promoted titles, and overall ranking within the work pool.  The non-ranked employees mostly recognize the deficits of their co-workers and supervisors – they should be consulted as having valuable input to the process of reduction in force which does not usually occur.

A statistical analysis of RIF, impact on protected classifications goes a very long way with Judges in the Courtroom, particularly, when disparate impact becomes the overriding issue of a lawsuit.  Other RIF plan considerations arise in Union situations or when ERISA is evident.  Furthermore, there must be a close scrutiny of those employees, who are readily identified as “at risk” by reason of being in a protected group, or with prior or active legal based complaints or can be identified as whistleblowers or compromised employees due to disability, workers compensation, pregnancy leave, FLMA or military leave.  Focus on security risk assessment for all the possible legal challenges.

Most advocates recommend no communication regarding any RIF… tight, restrictive access – no talk or open discourse, however, this breeds new problems amongst workers.

Services We Can Provide:

  • Independent analysis.
  • Advice for alternatives to achieve the same goals as a RIF – financially.
  • Management of the selection process or oversight.
  • Documentation of the consideration process and preparation.
  • Transparency to the work pool via external outsourcing to a qualified legal representative.
  • Outside company representative, if a meeting is called, or, if a dispute occurs.
  • Provide the message of Upper Management to those impacted by the RIF.
  • Explain the applicable laws and selection process for true transparency and accountability.
  • Be present for the layoff process and final day.
  • Arrange executive compensation and other packages.
  • Prepare agreements to protect trade secrets and intellectual property, non-disclosures, reasonable non-competes, compliance with Federal and State laws, COBRA, final plan benefits and secure company property and network systems.

Lastly, the effort placed in positive exit interviews and management of the media shall be extremely valuable for the future of the Company.  Good public relations and helpful outplacement referral services must remain a serious focus such that “disgruntled” employees do not ruin the Company’s good name.

There are more services which can be addressed during a consultation.  We look forward to meeting with you.

This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. [ Sitemap ]