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Evesham Employment Law Blog

New Jersey Businesses Fighting Paid Sick Leave Law

A referendum that appeared on the ballot in Trenton last November passed overwhelmingly. The measure required employers in Trenton to provide paid sick days to their employees. Voters supported the referendum 5,308 to 881. With the law set to take effect today, a coalition of businesses and corporate lobby groups have filed a lawsuit claiming the law violates the Constitution and New Jersey law. Trenton was to become the 8th municipality in New Jersey to have a mandatory paid sick leave policy, joining East Orange, Jersey City, Irvington, Montclair, Newark, Passaic and Paterson.

The law in question allows employees to earn, at most, 5 paid sick days per year. For workers at companies with fewer than 10 employees, the maximum is 3 paid sick days per year. Despite the limited nature of the protection, businesses are still fighting to frustrate the will of Trenton voters and keep the rights of workers to a bare minimum. 

Road Conditions And Car Accidents

Who designed this road? It's a question many of us have asked as we sat in traffic on a road that always seems to be overcrowded. Some roads seem like more potholes than road. Others have spots that are notorious for being the site of car crashes. The design and maintenance of our roads have a substantial impact on drivers. According to a recent report by TRIP, a nonprofit organization focusing on surface transportation issues, New Jersey drivers lose $2,000 per year to substandard roads and bridges.

The report entitled, "New Jersey Transportation by the Numbers: Meeting the State's Need for Safe and Efficient Mobility" considers costs associated with traffic accidents, traffic delays caused by congestion and vehicle operating costs. The traffic crashes in included in the cost are limited to those where roadway features are considered a contributing factor. The statewide total of these costs was $11.8 billion. 

"Sooner or later, everything old is new again." - Stephen King, The Colorado Kid

For employees here in New Jersey, it is time to fire up your time machines because workers' rights are under attack. Just like bellbottom jeans once swung back around into style, discrimination against and silencing workers is back on the rise. Of course, it was to be expected that such an attack would come from corporate America, insurance companies and the conservative right wing. But now, those attacks are coming directly from the judiciary where new requirements are being read into laws that never existed when they were passed by the legislator.

Take for example the case of James Hitesman v. Bridgeway, Inc., a matter decided by the Supreme Court of New Jersey last June. Mr. Hitesman, a registered nurse at a nursing home, alleged that he was terminated in retaliation for complaining about what he perceived to be inadequate infection control which was a threat to patients' safety. In support of the reasonableness of that complaint, Mr. Hitesman pointed to the American Nursing Association Code of Ethics and two internal Bridgeway policy documents. He won at trial. This means that a jury believed that he had complained about what he believed to be a threat to quality of patient care and that he was terminated in retaliation for the same. However, after winning at trial, the Appellate Division reversed the verdict and the Supreme Court affirmed that reversal finding that the sources cited by Mr. Hitesman did not speak directly to patient care or a clear mandate of public policy. However, this holding directly ignores the language and purposes of the statute at issue, the Conscientious Employee Protection Act ("CEPA"). In 1998, CEPA was amended to protect an employee who is a licensed or certified healthcare professional who objects to what he reasonably believes constitutes improper quality of patient care. It is simply shocking that the Court found that a nurse who premised his objection upon the ANA Code of Ethics was not entitled to whistleblowing protection. This holding does not serve to protect patients or residents of nursing homes, but instead serves only to protect the corporate entities which own those homes and place the residents at risk. 

Employment Discrimination In Benefits For Same Sex Couples

Among the many reasons to support same sex marriages is so that all loving couples can enjoy the benefits and legal protections afforded to spouses. In the United States, a large percentage of the population gets health insurance through their employer. The reasons for this are curious and antiquated, but the result is that employers have power over their employees in terms of the health care coverage they receive. For same sex couples, that can mean another avenue for discrimination in an employer decides that they don't personally support marriage equality.

It is not unusual to work for a company with its headquarters in another state. Just because you live in a state like New Jersey that recognizes same sex marriages, doesn't mean that you might not run into problems if your employer is located somewhere else. Among the 15 states still on the wrong side of history, employers may find ways to try to deny you your rights. 

Another Step In The Push For LGBT Rights

The U.S. State Department announced the creation of a new senior level position that could help advance the rights and equality of LGBT persons worldwide. The State Department has named a Special Envoy for the Human Rights of LGBT Persons. The new role has been filled by Randy W. Berry who is a highly experienced diplomat. He has previously served as the U.S. Consul General in Amsterdam, Netherlands; Auckland, New Zealand; and as a State Department official in Uganda, Bangladesh, Egypt, South Africa and Washington D.C.

The rights of LGBT persons in the United States are far from secure. The fight for equality continues on many fronts. LGBT persons are still subjected to abuse, harassment and discrimination here at home. The situation across the globe ranges from unfortunate to absolutely tragic. It is not hard to find places where having a disfavored sexual orientation is nothing short of a death sentence. The Special Envoy can help make sure that the rights of LGBT persons are a priority in our foreign policy endeavors all over the world. 

New Jersey Employment and Civil Rights Trial Lawyer Discusses Elder Care and Civil Justice System

"Or . . . What Would Elder Care Be Like Without Trial Lawyers and Juries?"

This is another in my "what would life be like without trial lawyers?" (and jury trials) series. Glad everyone is enjoying it.

As we age, we become increasingly more vulnerable and helpless. The use of chemical restraints - drugs used to subdue or even restrain patients - has increased dramatically in nursing homes of the last several years, although the vast majority of the patients upon whom those drugs are used have no psychiatric diagnosis.

Trial attorneys have exposed a cynical reason that these drugs are used - to cover up the need to do deeper and more thorough medical care and to respectfully and carefully take care of older people - and its lawyers and lawsuits that have helped get patients off of these stifling anti-psychotics. They've also taken on the pharmaceutical giants that illegally market these medications to control senior populations.

Each year, 14,000 nursing home patients die nationwide of malnutrition and dehydration. In addition, nearly 160,000 residents had at least one pressure ulcer - sores that come from not moving patients around - yet only 35% of those with the most severe ulcers receive special care for their wounds. Why is that? 

So Many Women Are Sexually Harassed At Work

A survey conducted by Cosmopolitan demonstrates the shocking prevalence of abusive conduct directed at women in the workplace. One-third of the women surveyed who were between the ages of 18 and 34 reported being subjected to sexual harassment in the workplace. More than 2,000 female employees were surveyed. The results were broken down by age, field of employment and the education level of the employee harassed.

There are several important takeaways from the survey. First, sexual harassment is alive and well. Improvements in gender equality, incremental and insufficient on the whole, have not come close to solving this issue. Women are still regularly subjected to verbal harassment, unwanted touching and sexual advances, as well as lewd emails and texts. Second, the people doing the harassing are still primarily male. The majority of incidents of harassment were from male coworkers, though male clients and customers and male managers were responsible for a meaningful percentage of the harassing behavior. Third, sexual harassment is not widely reported. Less than one-third of the women surveyed indicated that they reported the offensive conduct. Of those who did report, only 15 percent felt that their report was dealt with fairly.

A Banner Year For Defective Vehicles

Recalls are not the ideal way to handle a defective car or truck. In an ideal world, safety testing would prevent vehicles with dangerous defects from ever reaching consumers. The fact of the matter is that every year, a certain number of potentially dangerous vehicles make their way onto American roads. In 2014, the number of vehicles recalled for potential safety problems reached record numbers. More than 63.9 million vehicles were recalled for a wide variety of concerns, some more serious than others. The number eclipsed the total number of recalls in the three previous years, combined.

Some might suggest that a large number of recalls is a sign that the process is working. If we assume that these defects can't be identified before consumers are put in danger, at least the cars are being recalled once the danger shows itself. Unfortunately, it's not that simple. If a potentially deadly defect is identified in 2014, there is little reason to expect that consumers will know about it or that the vehicle will be recalled prior to 2020. Investigations drag on for years while people are injured in traffic accidents that could have been prevented. Meanwhile, the law supposedly requires auto makers to report safety defects to owners, purchasers and dealers within 5 days of learning of the problem. 

New Jersey Employment and Civil Rights Trial Lawyer Discusses the "Workers' Wish List"

You're gonna have to stick with me on this one; it may get a bit cerebral, but if you weren't smart, you wouldn't be reading my blog, so we're all good.

I guess this is coming about a month or two too late, since the title and theme would've been best offered right around November or December (it's a "wish list"), but this didn't really hit me until just now, so this is when you're getting it.

First of all, you've noticed that I've tried (and hopefully have succeeded) in avoiding painting American political parties with a broad brush. I get that painting with a broad brush can be more correct than incorrect, but unless it's necessary, it's never a great idea. To every rule, there are exceptions. There are progressive, reasonably-minded republicans who, if they were from a different locality than progressive New Jersey, might even be democrats. There are also a bunch of "right-thinking" conservatively leaning democrats that are probably republicans in democratic clothing in other states. And sometimes, as we know from experience, legislators and politicians near the "middle" of the spectrum do change their party affiliation.

With all of that in mind, I'm talking to both republicans and democrats, even to libertarians and socialists. I don't really care what party you typically support. I don't care how you typically vote. If you work for a living, or the people you love do, then I'm talking to you.

I'm also not telling you what "party' to support. You've got to look at the candidates in each political battle in which you're eligible to vote and figure out who's going to protect workers' rights better than the other. Whoever that person is, vote for that person based on that issue.

Why?

Because I've been doing this for 23 years and frankly, it's intellectually and emotionally exhausting to talk to 5000-6000 people a year that I can't help because the state of the law in New Jersey is not advanced to a point where such people, though their fact pattern, would be able to redress their concerns in the courts. They deserve help they just, based on the current state of the law, can't get it.

That's 5000-6000 people per year. Do the math. We're approaching 100,000 people over my career that I can't help because the law doesn't offer help despite the fact that these people deserve it.

As a consequence of this, I've made out my "wish list" on behalf of New Jersey workers. This isn't really my "wish list;" it's your wish list. You. Republicans, democrats, older people, younger people, black, Hispanic, Asian, South American, Pacific Islander, Artic Circle, gay straight, disabled, well, transgender, all religions, all ages. All of you. The people with college and advanced degrees and the people who barely got through high school. The people making a lot of money and the people making a little money. The people working just for themselves and the people trying to feed spouses, partners and families.

All of you. I know that you have more than one issue upon which you vote. Perhaps you've got a religious affiliation, or a political one. Perhaps you've got some tax policy ideas in your head, or you've got ideas about immigration, foreign policy, etc.

If you're going to call this office and then tell me how upset you are with the state of the law because, as a worker, the law doesn't protect you from whatever it is that prompted you to call, however, you've got to stop voting all those other issues and vote your interests in a better, safer, more secure and productive workplace.

You get it? No more complaints until you change the political landscape of New Jersey and, frankly, the United States.

Here's your wish list.

New Jersey Strikes A Blow In Strange Battle

If there were any question that members of the LGBT community are still subjected to outrageous, discriminatory treatment, a lawsuit moving through New Jersey courts should answer it. The Judge handling the case made a noteworthy ruling this week in describing a type of consumer fraud. Therapists who claim that they can change a person's sexual orientation or who label homosexuality as a curable mental disorder are committing fraud. The ruling from a New Jersey Superior Court Judge opens the door for lawsuits against these therapists for violating the Consumer Fraud Act.

In the battle to help the victims of bullying, harassment and workplace discrimination, every advance is good news. Sexual orientation is not something to be cured. It is not a problem to be dealt with. Having a sexual orientation or identity that doesn't match up with the expectations of others is not something that should relegate you to second-class status. Having a group of "therapists" declare your identity to be a mental disorder that they can treat is beyond insulting and offensive. It is now fraud. 

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