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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.

I. WE WANT A WORKPLACE BULLYING LAW THAT GRANTS ACCESS TO A JURY TRIAL FOR WORKPLACE ABUSE

Although Senator Linda Greenstein in New Jersey has repeatedly proposed the "Healthy Workplace Act," a bill which would render actionable workplace abuse that isn't specifically discriminatory, the bill has gone down to defeat every time. It's also gone down to defeat every time in every other state in which it's been proposed.

Yet 2010 surveys suggested that between 65-70% of all workers polled favored such legislation. 2014 surveys put the number favoring such legislation at over 90%. That means we're talking about everybody, of all political affiliations and educational levels, wanting a workplace bullying law.

Who doesn't want it? Employers who like to bully their workforce, abuse them to motivate them, and permit others appointed by ownership to do so in their name; as well, political allies of those types of people. You figure out who they are and don't vote for them. Even if you're not in Senator Greenstein's district in New Jersey, call her office and thank her for the effort. She appreciates it. Every legislator who proposes legislation that they don't think is going to be popular, but they still think is necessary, appreciates knowing that voters appreciate their efforts. They're human. Let her know you care and let her know that you appreciate that she cares.

As well, call the legislators in your district and let them know that you care about this law and that you want them to support it. Then vote your conscience on the issue.

II. WE WANT NEW JERSEY'S WAGE AND HOUR LAW TO PROVIDE THE SAME PROTECTION THAT FEDERAL LAW DOES

Usually, New Jersey law that speaks to the same employment issue does a bit better than federal law, but not here.

Wage and hour abuse is one of the most common types of abuse in American workplace institutions. It's getting worse. More and more employers are looking for ways to dishonestly "exempt" employees who deserve overtime from their overtime rights. Sometimes they do this by pretending that the workers aren't really workers but rather "contractors." As well, they just threaten or intimidate the workers by suggesting that unless the workers are willing to take less than they deserve, they might not keep their job.

Under federal law, an employer who acts in bad faith and who knowingly breaks the law is liable for up to three years of failed overtime wages and can be hit for "double damages" as a penalty. Yet in New Jersey, under New Jersey's Wage and Hour Law, no such "double damages" are available no matter how disgusting the employer's conduct is, and under no circumstances does the New Jersey law allow a three year "look back" period.

Obviously, this is one where New Jersey has missed the boat. Needs to be fixed.

III. NEW JERSEY'S FAMILY LEAVE LAW NEEDS TO PROVIDE AT LEAST AS MUCH PROTECTION FOR A WORKER'S OWN SERIOUS HEALTH CONDITION AS THE FEDERAL LAW DOES

This is another area where New Jersey doesn't do as well as the federal law. Under the federal Family Leave Act, you're entitled to up to 12 weeks of unpaid leave for most of the same reasons as New Jersey law provides such leave (birth or adoption of a child, death, or need to care for, a close family member, etc.) Yet the federal law allows one to take leave for their own serious health condition, while the New Jersey Law only extends to members of your family.

Well that doesn't make sense. New Jersey's law ought to do at least as well, if not better. Needs to be fixed.

IV. WE WANT A REMEDY FOR THOSE HARASSED BECAUSE THEY PURSUE WORKERS' COMPENSATION BENEFITS

If you're fired for having pursued workers' compensation benefits or remedies, or even asking about your rights in that regard, you have a common law action for wrongful discharge in violation of a public policy. The "public policy" at issue is the anti-retaliation provision of the Workers' Compensation Statute.

Yet that "common law" action means that there is no "shifting" attorneys' fee. That means that even if you lose your job, unless your wage loss is tremendously significant, it's a losing proposition for an attorney to accept the matter for you.

First of all, we need that doctrine to become "statutory" so that shifting attorneys' fees are available for workers retaliation. This will allow attorneys to take cases with moderate losses - "moderate" from a litigation costs perspective, not in terms of what money means to your family - instead of turning them down.

Secondly, many people are harassed to the point where they quit themselves or are at least made miserable just because they pursue workers' compensation rights. Under the current state of the law, people don't have a "retaliatory harassment" action for pursuing workers' comp benefits.

In fact, they have no remedy at all.

Big hole. Needs to be fixed. People are retaliated against by being made miserable by employers who know that they can get away with harassment, just not with relatable discharge.

New Jersey's workers work hard. They deserve better than the legislature has given them and it's time to fix these holes. Some of them are big enough to drive a boat through. 

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