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Discrimination in the workplace

Discrimination in the workplace is when one or more employees are treated unfavorably, based on characteristics like age, race, gender, or sexual orientation.

Zachary Avina | Nov 15, 2019

California's AB 51 Prohibits Employers from Using Mandatory Arbitration Agreements for Employees

SUMMARY OF AB 51 Primarily, AB 51 restricts employers from unilaterally requiring their employees to arbitrate, mediate, or otherwise control the manner and forum of a dispute, as a condition of hire, continued employment, or the receipt of an employment-related benefit. Additionally, AB 51 prohibits an employer from threatening, retaliating, or discriminating against, or terminating any applicant for employment or any employee because of the employee’s refusal to consent to the waiver of any right, forum or procedure. However, the legislature did exempt certain employment-related agreements from AB 51’s broad scope. Post-dispute settlement agreements and negotiated severance agreements can still contain language requiring arbitration, mediation, or the like for disputes arising under these types of agreements. CONSEQUENCES OF VIOLATING AB 51 Most alarmingly, the legislature expressly makes it a misdemeanor for an employer to violate AB 51. Furthermore, violations of AB 51 are also subject to injunctive relief and statutory penalties defined elsewhere in the Labor Code. Thus, if an employee or former employee sues an employer under this law, all or some of these consequences can befall the employer. CONCLUSION Although AB 51 should be taken seriously, it is unclear how long this new law will remain in effect. Certain aspects of AB 51 are at odds with Federal law and may be struck down; however, this judicial process would likely take years to complete. In the meantime, California employers should consult with an attorney to correct their employment paperwork and ensure full compliance with AB 51. Too much is at stake.

Daniela Stefania Carrion | Nov 6, 2019

How to File an EEOC Discrimination Complaint: Explore Your Options

How to File a Complaint An official Charge of Discrimination against your employer can be filed once you first submit an inquiry through the EEOC portal and an interview takes place. The Charge of Discrimination is a signed statement asserting that your employer has engaged in discriminatory activity and requests the EEOC to take remedial action. Keep in mind that you only have 180 days to file a charge, or 300 days if the state in which you work has a discrimination statute which parallels the relevant federal discrimination statute. Florida has such a statute. To fully understand the statute of limitations, we recommend you seek legal counsel as soon as the discrimination occurs. Find the EEOC Office List and Jurisdictional Map here: https://www.eeoc.gov/field/index.cfm and enter your zip code for the contact information of the EEOC office closest to you. Mediation Prior to investigating your complaint, the EEOC may recommend mediation with the intention to resolve the dispute from investigation or lawsuit. A mediator facilitates reaching a negotiated agreement between both parties. Mediation aims to provide an efficient resolution in hopes of ultimately reducing headaches and costs for the employer and the employee. Investigation The EEOC will open an investigation if 1) you choose to decline mediation or 2) mediation does not reach a resolution. The EEOC will investigate your claims and depending on the information they need to gather, the process is lengthy. The EEOC will request a Respondent’s Position Statement from your employer, hold interviews to gather questions regarding your claim and request additional documents or files. It is important that you produce as much information and evidence to the EEOC for the agency to take it under consideration while their investigation is pending. You should also periodically check in on your case once an investigator has been assigned to your case. EEOC Lawsuit & Notice of Right to Sue If the EEOC is not able to attain settlement with your employer, they can file a lawsuit on your behalf. At the end of their investigation, the EEOC will issue an Equal Employment Opportunity Commission, Notice of Right to Sue [as described in Title 29 Chapter XIV § 1601.28(e)] if they feel they are not able to conclude the case themselves -- this marks the end of the EEOC’s investigation period. By law, the deadline to file your lawsuit in court must be within 90 days after your receipt of the Dismissal and Notice of Rights letter. Representation by Counsel We recommend having a consultation with a qualified labor and employment lawyer before you make a decision to file a charge, as a lawyer may recommend an approach to attempt to settle your claim prior to filing a charge, or help you file the charge directly with the EEOC in order to prepare your case for litigation. A qualified labor and employment lawyer can also explain to you in detail your statute of limitations and any other important circumstances to consider.

Regina M. Campbell | Nov 3, 2019

10 Key Elements of a Solid Employee Contract

Terms of Employment: Generally, the terms of employment include how long the employee will be employed. For freelance or contract positions, this might mean for a specific amount of time or until a project is complete; for more traditional employment, this often means indefinitely or until either party terminates the employment relationship. Employee Responsibilities: One of the most varying parts of an employment contract is the section detailing employee responsibilities. This is because every job is different; therefore, the expectations for each position differ. For example, a construction contractor’s employee responsibilities aren’t the same as a salesperson’s responsibilities. Employee Benefits: Benefits can range from health and life insurance to disability pay and retirement plans. Sometimes, employment benefits include purchasing and/or owning stock in the business. Employment Absence: Most often, employment absence includes factors such as sick days or personal leave and vacation time. Dispute Resolution: Such resolutions might include methods such as mediation or arbitration to solve disputes between an employee and employer. Nondisclosure Agreements: These agreements prevent employees from sharing a company’s business secrets, such as trade information or client lists. Ownership Agreements: Simply put, an ownership agreement means anything produced by the employee while employed by the employer becomes property of the business. Assignment Clauses: Similar to ownership agreements, assignment clauses basically mean any patents obtained by the employee during his or her employment are assigned to the business. Employment Opportunity Limitations: Many employee contracts include clauses that prevent the employer from limiting the employee’s potential future job prospects should the employer terminate him or her, or should he or she decide to leave the job. Termination: Each employee contract should clearly define all possible grounds for termination.

Matthew Allen Luber | Oct 25, 2019

What is Workplace Sexual Harassment?

What is Sexual Harassment? Sexual harassment includes any unwelcome verbal, visual, or physical conduct in the workplace. This can include conduct of a sexual nature or conduct based on someone’s sex or sexual orientation. Sexual harassment can be so severe that it creates a hostile work environment for the employee. Unwelcome Conduct Sexual harassment includes unwelcome and unwanted behavior. It is helpful if the victim informs the harasser that the conduct is unwelcome. The victim of sexual harassment should also inform the harasser that the conduct needs to stop. Sexual Conduct Sexual harassment includes conduct of a sexual nature. However, sexual harassment is not limited to sexual behaviors. Sexual harassment can also include inappropriate conduct based on an individual’s sexual identification or sexual orientation. For example, this can include discrimination against an employee because of the employee’s sex. Many different types of actions of a sexual nature may be sexual harassment. This may include verbal, physical, nonverbal, or visual conduct. For instance, inappropriate touching and sexual jokes may both constitute sexual harassment, although they take different forms. Severe or Pervasive Conduct The unwelcome conduct must either be severe or pervasive. Conduct is severe if it includes a very serious incident. For example, severe conduct may refer to rape or attempted rape. However, the conduct may also be pervasive. Pervasive conduct occurs when the harassment is less severe, but happens frequently or continues over time. Multiple minor incidents can accumulate to a sexual harassment claim if the incidents affect the victim’s work environment. For instance, this may include frequent and persistent sexual comments to an employee over time. Conduct that Affects Work Environment Sexual harassment can create a hostile work environment for the victim. Inappropriate and unwanted conduct at the workplace can make the victim feel uncomfortable and unsafe. Every person should feel comfortable where they work. But, this type of harassment can create a hostile work environment for the victim, affecting the victim’s work performance. Sexual harassment can also affect the victim’s working conditions. For example, the victim rejecting sexual advances may be fired, demoted, or refused a promotion. The sexual advances can not only leave the employee feeling victimized and unsafe, but can also lead to the victim losing money or job opportunities. Contact Us You should always feel comfortable and safe where you work. If you have experienced sexual harassment, the Middletown sexual harassment lawyers at McOmber & McOmber, P.C. can help you. Please call our Red Bank office at 732-842-6500, our Marlton office at 856-985-9800, OR contact us at 888-396-0736 or online for a free consultation. We represent all clients in Middletown, Cherry Hill, and throughout New Jersey.

Matthew Allen Luber | Oct 25, 2019

Examples Of Pregnancy Discrimination

NJLAD Protects Pregnant Employees The New Jersey Law Against Discrimination (NJLAD) protects employees from discrimination in the workplace. This law prohibits discrimination on the basis of race, national origin, age, sex, gender identification, sexual orientation, marital status, religion, disability, pregnancy, or military status. Under the NJLAD, pregnant women cannot be discriminated against at work for their pregnancy, childbirth, or pregnancy-related medical conditions. Examples Of Pregnancy Discrimination Firing a pregnant employee or not hiring a pregnant applicant - An employer cannot discriminate against or fire a pregnant employee because of her pregnancy status. An employer cannot refuse to hire an employee solely because she is pregnant. Harassing a pregnant employee -Harassment of a pregnant employee might include comments, actions, or behaviors in the office. Any severe and pervasive behaviors about an employee’s pregnancy that create a hostile work environment for the pregnant employee may constitute harassment. Pregnant employees should feel safe and protected in the workplace. Not providing reasonable accommodations A pregnant employee must receive reasonable accommodations for her pregnancy during her employment. Pregnant employees shall receive the same level of accommodations awarded to their coworkers with medical impairments. Forcing an employee to take time off -An employer cannot force an employee to take time off because the employee is pregnant. This is discriminatory behavior and unacceptable in the workplace. Changing an employee’s role/responsibilities because of pregnancy status -The pregnant employee and the employee’s doctor are best suited to decide the capabilities of the pregnant employee. Therefore, an employer should not change an employee’s role or responsibilities solely based on her pregnancy status. Rejecting pregnancy-related Medical Leave -The State of New Jersey and federal law set out guidelines for pregnancy-related medical leave. Employers cannot disregard these statutes. Retaliating against an employee who claims pregnancy discrimination -If an employee claims or reports pregnancy discrimination, an employer cannot retaliate against the pregnant employee. This list of examples is by no means exhaustive. Pregnancy discrimination can take many forms. If you are experiencing any of these unlawful actions, please know you are not alone. Your pregnancy should be a beautiful time for you and your family. You should not be worried about losing your job or facing discrimination.

Christian V. McOmber | Oct 25, 2019

Examples Of Pregnancy Discrimination

NJLAD Protects Pregnant Employees The New Jersey Law Against Discrimination (NJLAD) protects employees from discrimination in the workplace. This law prohibits discrimination on the basis of race, national origin, age, sex, gender identification, sexual orientation, marital status, religion, disability, pregnancy, or military status. Under the NJLAD, pregnant women cannot be discriminated against at work for their pregnancy, childbirth, or pregnancy-related medical conditions. Examples Of Pregnancy Discrimination Firing a pregnant employee or not hiring a pregnant applicant - An employer cannot discriminate against or fire a pregnant employee because of her pregnancy status. An employer cannot refuse to hire an employee solely because she is pregnant. Harassing a pregnant employee -Harassment of a pregnant employee might include comments, actions, or behaviors in the office. Any severe and pervasive behaviors about an employee’s pregnancy that create a hostile work environment for the pregnant employee may constitute harassment. Pregnant employees should feel safe and protected in the workplace. Not providing reasonable accommodations A pregnant employee must receive reasonable accommodations for her pregnancy during her employment. Pregnant employees shall receive the same level of accommodations awarded to their coworkers with medical impairments. Forcing an employee to take time off -An employer cannot force an employee to take time off because the employee is pregnant. This is discriminatory behavior and unacceptable in the workplace. Changing an employee’s role/responsibilities because of pregnancy status -The pregnant employee and the employee’s doctor are best suited to decide the capabilities of the pregnant employee. Therefore, an employer should not change an employee’s role or responsibilities solely based on her pregnancy status. Rejecting pregnancy-related Medical Leave -The State of New Jersey and federal law set out guidelines for pregnancy-related medical leave. Employers cannot disregard these statutes. Retaliating against an employee who claims pregnancy discrimination -If an employee claims or reports pregnancy discrimination, an employer cannot retaliate against the pregnant employee. This list of examples is by no means exhaustive. Pregnancy discrimination can take many forms. If you are experiencing any of these unlawful actions, please know you are not alone. Your pregnancy should be a beautiful time for you and your family. You should not be worried about losing your job or facing discrimination.