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New Jersey Employment Law Blog

Safety, Etiquette And The Left Lane

The left lane is for passing. It's a relatively simple idea that can help traffic move more quickly and safely. Proper lane discipline is not just about etiquette, though there is a component of that. Drivers who clog up the left lane cause congestion and congestion causes accidents. New Jersey is one of many states that have passed legislation increasing the penalties for holding up other motorists by cruising in the left lane.

Thousands of New Jersey drivers received traffic citations for left lane violations last year. In addition to a potential fine of hundreds of dollars, the violations can cost you two points on your license. Despite the enforcement, anyone who has driven on a New Jersey highway recently has likely seen multiple drivers occupying the left lane while not in the act of passing another vehicle. 

Wage and Hour and Overtime Rights Lawyer Discusses New Employment Rights

As long as the Fair Labors Standards Act (FLSA) has been in existence, American corporations, large and small, have looked for ways to avoid paying overtime to employees who are otherwise entitled to receive it. One of the most common tricks used by business is to "misclassify" and a worker who would otherwise be entitled to overtime as "exempt" from the overtime requirements of the law. "Exemption" is dependent upon the nature of the work performed by the employee and whether or not the employee is "salaried." The salary threshold is extraordinarily modest, only $450 per week, or $23,660.00 per year. At such a low threshold, it has been very easy for employers who don't want to do the right thing to pay an employee "salary" and then declare that employee exempt. This puts the employee in the position of having to prove that, even though they are salaried, the day to day work that they perform is not within one of the recognized exemptions to the law. It puts the employee in the position of having to file a lawsuit and carry the burden of proof on misclassification.

Finally, the Department of Labor seems to have recognized just how absurd the salary threshold of $450 per week is. The Department of Labor has just announced a proposed change to the rules, which would increase the salary threshold for exemption from the overtime requirements of the fair labor standards act from $455 per week to approximately $970 per week. It will be much more difficult for employers to play the game of paying someone a salary and then declaring them exempt when the salary has to be $50,000.00 per year instead of only 20s. 

The Response To School Bullying

The experience of being bullied or of parenting a child who is being bullied is not easy. Every situation is unique, but there are things that should always be done when bullying occurs. Schools cannot ignore bullying. Neither can they afford to respond in an uneven, unpredictable or unreliable way. School boards and administrators are accountable for the action or inaction they take to prevent or address bullying behavior. Despite the necessity of an effective bullying and harassment policy, parents and victims of bullying receive a wide range of responses when they report unacceptable conduct.

The New Jersey anti-bullying law requires schools to record events of harassment, intimidation or bullying. That said, it is important for parents to document incidents of bullying as well. It is not unusual for students engaged in bullying to accuse their victims of similar offenses. The victims of bullying may even end up being punished based on accusations that they were responsible for confrontations. Similarly, parents of victims are discouraged from directly contacting the parents of bullying children. Your desire to protect your child is laudable, but you do not want to be accused of harassment based on your attempts to protect your child. 

Automaker Lobbyists 1, Safety 0

It was probably a foregone conclusion once the Senate came under Republican control in January. The push for auto safety reforms was never likely to succeed once the dollars started flying around Capitol Hill. The latest piece of legislation designed to protect auto consumers hit a major snag last week when a Senate committee struck down several measures designed to protect the people from automotive businesses. The push to allow criminal sanctions against auto executives who hide deadly auto defects was struck down. In addition, a measure that would have prevented used car dealers from selling cars with unrepaired recalls was also defeated. The news was largely bad for anyone without a major financial stake in protecting auto industry leaders.

Among the few measures that the Senate committee did approve was an increase on the maximum civil penalty that can be assessed against automakers that do not cooperate with safety authorities. The current figure, $35 million, has been derided as a drop in the bucket for automakers. General Motors reported a net income of $1.38 billion in the third quarter of 2014, alone. The increased penalty would allow for a $70 million dollar penalty. That figure is still obviously a pittance to automakers and will represent no deterrent whatsoever in keeping them accountable. 

EEOC Clarifies Stance On Anti-Gay Discrimination

Three years ago, the Equal Employment Opportunity Commission ruled that discrimination based on gender identity was sex discrimination. That ruling meant that transgender discrimination was included among the behaviors expressly forbidden by Title VII of the 1964 Civil Rights Act. That ruling did not, however, tackle the question of whether anti-gay discrimination in the workplace should be considered sex discrimination. In a recent 3-2 vote, the EEOC has now made its position clear. If an employer discriminates against you based on your sexual orientation, that employer is violating the Civil Rights Act.

The question is broader than the EEOC's ruling. There have been a number of cases over the years touching on this issue. The problem is that "sexual orientation" is not specifically listed in Title VII as one of the prohibited bases for an employment lawsuit. Congress is well aware of this omission and has failed to correct it, despite numerous opportunities to do so. With the majority so firmly against them, Congress may soon take steps to protect same-sex oriented people through Title VII, but for now the courts are left to make their own decisions. Several circuit courts have declined to protect workers from this form of discrimination. 

Trucking Legislation Pushes Hourly Pay For Truck Drivers

There is a growing belief that the way truck drivers are paid is leading to unsafe practices. The majority of truck drivers are paid by the mile, rather than by the hour. When a truck driver is stopped in traffic or is waiting for the truck to be loaded or unloaded, that driver is not getting paid. Obviously, getting paid by the mile is an inducement to drive too fast and to drive in weather that makes conditions unsafe. Truck drivers are exempted from the Fair Labor Standards Act which mandates the minimum wage. New legislation was proposed to the U.S. Senate last week that would require employers to pay truck drivers for the hours they work, rather than for the miles they drove.

The proposed Truck Safety Act contains other provisions also intended to make trucking safer. The bill would increase minimum insurance levels carried on trucks, something that is long overdue. It would also require speed limiting devices and new rules regarding collision avoidance systems. Finally, the bill calls for a study into the effects of excessive commuting among truck drivers.

Motorcycle Safety Campaign Has Blunt Message

The American Academy of Orthopaedic Surgeons has a brutal new slogan for its motorcycle safety campaign: Read the Road. And You Won't Need as Many New Parts. Collisions between cars and motorcycles are particularly deadly. They are also frequently the result of errors made by the driver of the car, rather than mistakes by the rider. That said, the truth is that many deadly motorcycle accidents are single vehicle incidents. Riders who lose control of their motorcycles suffer broken bones, head trauma and worse. The campaign urges riders to be mindful of road conditions that contribute to these one-vehicle accidents.

When the final tally is released, it is likely that there will have been fewer motorcycle fatalities in 2014 than in 2013. The decrease is relatively minor, however, and is being attributed largely to weather and economic factors. The risk factors faced by riders are the same as in previous years. Those risk factors include the use of alcohol or drugs before riding, driving faster than is safe given the road conditions, inexperience and lack of safety training and motorists who do not share the road properly with motorcyclists. 

Employment Challenges Face Transgender Community

The New Jersey Law Against Discrimination is a civil rights statute that prohibits a wide range of discrimination, including employment discrimination based on gender identity or expression, gender role and transgender status. The law is an attempt to protect some of the most disadvantaged communities in the nation. Transgender people, despite recent progress, still face an uphill battle in securing their rights in employment and other areas of life.

The National Center for Transgender Equality and the National Gay and Lesbian Task Force have substantial data detailing the struggles faced by transgender Americans. The rate of extreme poverty among transgender people is nearly four times the national average. Unemployment is a massive problem. When surveyed, 90 percent of transgender Americans acknowledge that they have been subjected to harassment, mistreatment or discrimination on the job. The situation is particularly bleak for member of racial minorities. Transgender discrimination combined with race discrimination makes the prospect of earning a living in this country bleak for some individuals. 

New Jersey Civil Rights Trial Lawyer Discusses Supreme Court's Same Sex Marriage Decision in Obergefell v. Hodges

Mark Twain, lauding the effectiveness of a short communication over a long one, once joked "I didn't have the time to write you a short letter, so I wrote you a long one instead." When blogging about the important civil justice issues we cover in this blog, I've tried to bear this in mind, as well as the more oft-quoted maxim that "brevity is the soul of wit," but there are times when it is necessary to say a bit more than just a few words.

This is one of those times. I've blogged repeatedly about employment and fundamental civil rights, because that's my calling. I'm a civil rights trial lawyer. I represent victims of abuse. It's natural and sensible that these subjects would be near and dear to me professionally and personally. Yet, I'm not a gay person. I don't have anyone close to me in my life right now who is. Yet my sincere and honest support of the rights of the LGBT community (across the board and throughout the history of my practice) can't be described as purely "professional."

I guess it's because I'm a bit of a dreamer. I've mentioned before in my blogs - sometimes self-deprecatingly and sometimes in the hopes that other geeks will recognize the references - that when I was young I fell I love with Star Trek. I hoped that one day, mankind would take that path. Not just the path to the stars, and to new frontiers, but to a better world. The driving assumption of Star Trek's credibility was a united earth that had gotten past the petty problems of war, poverty, the inequality of nations, planetary resource management and social issues that attend conversations of race, ethnicity, religion and (at least impliedly) sexual orientation. 

NEW JERSEY EMPLOYMENT and CLASS ACTION LAWYERS DISCUSS TIP POOLING

We're seeing more and more wage abuse and wage theft. One of the latest trends concerns illegal tip pooling.

If you're employed as a tipped employee who relies upon tips for income, such as a waiter, waitress or bartender, the fact that you earn income through tips allows your employer to lawfully pay you only $2.13 per hour, despite the fact that the minimum wage in New Jersey is currently $8.38 per hour and the federal minimum wage is currently $7.25 per hour. This is a tremendous boon to bar and restaurant owners and others who employ traditionally tipped employees.

That boon, however, is not without restrictions. In order for your employer to take advantage of what is known as the "tip credit" (the legal mechanism that allows them to credit a portion of your tip income to the employer's obligation to pay the minimum wage) the employer must strictly comply with federal regulations governing the tip credit. One of the most common violations of the tip credit is when an employer requires employees to participate in a "tip pool" whereby they are required to "share" their tips with other employees. Commonly, servers will be required to "tip out" bus people and bartenders.