All posts by David Kaplan

Dangers of an Employment Arbitration Agreement

The Dangers of Signing an Employment Arbitration Agreement

Since the 1980’s there has been a significant shift in the balance of power within the workplace. As employees lose power, their employers gain more power. This power shift is all due to the Supreme Court’s reinterpretation of the Federal Arbitration Act (FAA). The FAA, when it was originally enacted in 1925, only applied to a narrow range of commercial disputes. In the 1980’s, however, the Supreme Court radically expanded the scope of the statue, applying it to all types of disputes. Now, it is common for employers to require employees to sign arbitration agreements in order to receive the job at hand, or to remain employed. Although the trend towards arbitration agreements is great for the employer, the same cannot be said for employees. Follow along to see the true dangers of signing an employment arbitration agreement. 

 

Stripping Your Rights to Sue in a Court of Law

Essentially, when you sign an employment arbitration agreement, you are signing away your rights to sue your employer in a court of law. Instead, if you have an issue of any kind within the workplace, you must settle the dispute in arbitration. Arbitration is a private process in which the disputing parties agree that a neutral third party can make a final decision about the dispute after receiving evidence and hearing both sides of the argument. 

While it may seem nice and cordial to avoid courts, it actually benefits the employer much more often than it benefits the employee. The rate at which employees win arbitration cases (21.4%) is lower than the rate at which they win federal (36.4%) and state (51%) court cases. In addition, the differences in damages awarded is even greater. The median award in an employee’s arbitration case is only 21% of the median award in federal court cases and 43% of the median award in state courts. Thus, even if you happen to win your arbitration case as an employee, you will win much less than if you were to file a winning lawsuit against your employer. 

Furthermore, some arbitration agreements may include that if the employee loses the case they will have to pay for arbitration fees out of pocket. A clause such as this can serve as a strong deterrent to employees who may be considering bringing up cases against their employer, for fear of the potential costs. Ultimately, deterring employees from speaking out is bad for everyone because it allows businesses to continue operating without having to face the consequences of misconduct. 

 

Arbitration is an Unfair Forum

Moreover, arbitration is an unfair forum because of the lack of regulation. Though arbitrators claim to be unbiased third parties, the employer is in charge of picking the arbitrator and arbitration forum if an employee files a case. Therefore, arbitrators often have incentive for siding with the employer to gain the employers loyalty and repeat business. Additionally, arbitrators do not have to necessarily follow the law or issue written explanations of how they interpreted the law in relation to the case. Further, arbitration is a secretive forum, not open to the public, thus, results can be kept confidential allowing for potential collusion between the arbitrator and employer. Lastly, there is limited discovery in arbitration which can ultimately deny the employee the means to gather enough evidence to fully support their claim, putting them at a disadvantage. Overall, the structure and rules of arbitration clearly lean towards the benefit of the employer. 

 

Contacting an Attorney

Before signing an employment arbitration agreement, it may benefit you to see an attorney to help you understand exactly the terms you are agreeing to. Also, an attorney may be able to give you suggestions for negotiating the agreement to better benefit you as an employee. Likewise, if you already have signed an arbitration agreement or have refused to sign an arbitration agreement and have faced discrimination, contact a qualified attorney for the next steps. In New Jersey, there have been multiple attempts to bar employers from using agreements that waive rights and remedies for employees facing discrimination. For more information on the specifics of New Jersey law in relation to arbitration agreements and discrimination, contact David Kaplan. David Kaplan and his team are dedicated to helping citizens who have had their rights infringed upon. Plus, with 30 years of experience and numerous winning verdicts, you can expect nothing but quality legal representation. 

 

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NJLAD and Employer’s Mistaken Perceptions

How the NJLAD Protects You Against Employer’s Mistaken Perceptions

Under the New Jersey Law Against Discrimination (LAD), plaintiffs no longer need to prove they are actually members of a protected class to pursue a discrimination case, being perceived as a member of a protected class is sufficient. Now, what exactly is a “protected class”? A protected class refers to your race, religion, nationality, sexual orientation, gender identity, disability, marital status, age, etc. For an employer to discriminate based upon any of the things listed above is illegal. Additionally, if an employer assumes that you fit under a specific protected class, and then discriminates against you based on this mistaken perception, you still have grounds to file a discrimination claim. Below we will dive into exactly how the NJLAD protects you against employer’s mistaken perceptions, and what it means to file a mistaken perception claim.

Federal Discrimination Loophole

Luckily, New Jersey is one of the few states that have amended state laws to provide ample protection for those facing discrimination based upon mistaken perceptions. Again, under the NJLAD, it is sufficient enough to be perceived as a member of a protected class in order to file a successful discrimination claim.

Discrimination is Harmful Regardless of Factuality

When employees are dismissed by courts for experiencing misperception discrimination, it is assumed that the employee was not harmed by the discrimination because they are not actually a member of the protected class. Regardless of truth, harassment and discrimination is harmful and taxing to those enduring it. No one wants to go to a workplace where they are uncomfortable because of constant harassment. Furthermore, an employee could lose their job due to mistaken perception discrimination and receive no justice. The goal of anti-discrimination laws is to condemn discrimination, declaring it wrong at its very core. However, the loopholes for misperception discrimination greatly undermine this goal, making it seemingly okay to discriminate as long as it’s not based upon actual characteristics. To protect everyone from the harm of discrimination, theres must be explicit language condemning misperception discrimination as much as discrimination against actual characteristics.

Contact an Attorney

If you have faced misperception discrimination at your workplace, you are protected under the New Jersey Law Against Discrimination and should take action as soon as possible. The statute of limitations on discrimination claims is two years. In other words, you must file your discrimination claim within two years of the date you were discriminated against. For guidance through the process of filing a lawsuit and for better results, contact an attorney. David H. Kaplan, attorney at law, has dedicated his 30 year career to helping those who have had their rights infringed upon in a variety of ways. He is passionate about personally crafting winning cases and getting you the justice you deserve. For a free consultation, or to learn more, visit his website.

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New Jersey Car Crash Steps

Steps to Take Following a Car Crash in New Jersey

As the country’s most densely populated state, car accidents are practically unavoidable in New Jersey due to the rate of congested roadways. With that being said, it is important to know the legal requirements and limitations, specific to New Jersey, to be the most prepared while seeking compensation after a car accident. Below we will discuss insurance requirements, no-fault auto insurance laws, modified comparative negligence standards, and statutes of limitation all to give you a good idea of New Jersey car crash steps. Furthermore, we will explain when it is most advantageous for you to sue, limitations on suing, and the alternative options to receive compensation. If you have been in a car crash and are looking for guidance in the next steps, reading this is a good place to start. 

Important Things to Know About Auto Insurance in NJ

In regards to car insurance, New Jersey drivers are required, by law, to carry at least a “Basic Policy”. The Basic policy includes money towards Personal Injury Protection (PIP) coverage, in case you ever find yourself with an injury and you need help paying for medical care. The Basic policy also includes property damage liability coverage. This coverage applies if you cause damage to someone else’s property, such as a vehicle. The property damage liability coverage does not apply to damage to your own vehicle. For more extensive coverage, you must pay for the upgraded “Standard Policy”. The Standard policy, in addition to PIP and property damage liability, includes bodily injury liability. Thus, if you cause an accident where other drivers or passengers are injured, you will not be financially responsible for the losses uncovered by their own PIP insurance. 

No-Fault Auto Insurance State

Now that you have a better idea of the auto insurance requirements, you typically must contact your own insurance company to pay for medical expenses or other losses that arise from a car accident before you can pursue compensation from another party. This is because New Jersey is a no-fault insurance state. One of the benefits to utilizing this system is that medical expenses are paid quickly. Essentially, this system eliminates the extensive period of waiting for reimbursement for out-of-pocket medical bills and other expenses. 

On the other hand, however, the no-fault auto insurance system limits rights to sue for pain and suffering, unless you are suffering from major injuries. This will be touched on further under the “Rights to Sue an At-Fault Party” section. 

 

Modified Comparative Negligence Standards

If you choose to pursue further compensation, more than your insurance policy has allotted you, you will run into the modified comparative negligence standard that New Jersey applies to all personal injury cases. Under the modified comparative negligence standard, each party involved in a car accident will be given a percentage of fault. 

Generally, the jury is asked to calculate two things: total dollar amount of damages and percentage of fault based on the evidence they are given. If the jury concludes the plaintiff (person suing) should be awarded $10,000 in damages, but also that the plaintiff was 20% at fault, the plaintiff will then receive 80% of the damages amount. In other words, the plaintiff would receive only $8,000 of the calculated $10,000 in damages. The “modified” portion of these comparative negligence standards refers to the rule that if you are more than 50% at-fault you cannot receive any compensation from any other at-fault party. 

 

Rights to Sue an At-Fault Party?

With all the limitations and insurance requirements it can be confusing to decifier if you do, in fact, have the right to sue following a car crash in New Jersey. First and foremost, we want to reiterate that typically you must report the accident to your own insurance company for relief before you can pursue a lawsuit. Moreover, if you are over 50% at-fault for the accident, you will not be awarded any compensation for damages by another at-fault party. In this case, capitalizing on your no-fault insurance money is your best bet. Lastly, it is important to note the statute of limitation in New Jersey requires that any lawsuit regarding a car accident is filed within two years of the accident happening. 

So, assuming you are less than 50% at fault, within the statute of limitations, and have already reported the accident to your insurance, do you have the right to sue? Yet again, this mostly depends on your insurance policy. With the Basic policy you automatically commit to “limited rights to sue”. If you purchased the Standard policy, you choose between the cheaper “limited rights to sue” option or the more expensive “unlimited rights to sue” option. 

Limited Rights to Sue

Under the “limited rights to sue” options, you can only sue if the accident caused you, the injured person, to suffer loss of a body part, significant disfigurement, significant scarring, a displaced fracture, loss of a fetus, permanent injury, or death. 

Unlimited Rights to Sue

Paying for the “unlimited rights to sue” option puts all options on the table post car accidents. Meaning, no matter the extent of the resulting injuries, you can sue the other at-fault driver. Additionally, the limits on suing for pain and suffering are nonexistent. Therefore, with the “unlimited rights to sue” option you have the potential to recover compensation for all economic and non-economic losses resulting from the accident. 

 

Need Legal Representation?

Clearly, your rights post car accidents are complex and reliant on a multitude of factors. If you are looking for more guidance specific to your case, it may be time to contact an attorney. David Kaplan, a New Jersey attorney at law, has dedicated his 30+ year career to crafting successful personal injury cases. He has won over $10 million in verdicts and truly cares about bringing you the justice you deserve. Visit his website for more information, or to schedule a free case evaluation. 

 

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Pain and Suffering in New Jersey

Can I sue for pain and suffering in New Jersey?

The short answer to the question, “can I sue for pain and suffering in New Jersey,” is yes! The rules regarding pain and suffering in New Jersey fall under personal injury law, therefore a lawyer that specializes in personal injury would be the best person to contact with specific questions regarding your case for pain and suffering damages. With that being said, let us dive into the basics regarding pain and suffering damages in New Jersey. To begin, we must first define pain and suffering in regards to legal matters. Pain and suffering refers to the physical pains and emotional anguish a person deals with following an accident or intentional harm by another person. 

As you can imagine, it is hard to calculate and place monetary value on pain and suffering because it differs from person to person. Below, we will discuss the main factors considered when trying to define the dollar value of pain and suffering, limits on damages, and comparative fault rules in New Jersey. Hopefully, by the end of this article, you will be able to better understand if suing for pain and suffering is your best option moving forward. 

 

Physical Pain vs. Emotional Anguish

Physical pain refers to actual bodily injuries and sustained pain from those injuries. For example, if you were in a car accident and broke your femur, the pain from that injury in addition to the pain of healing and all other lasting pains will be considered as physical pain. Emotional pain and anguish is, arguably, harder to define. Depression, anxiety, loss of sleep, and other mental symptoms that have been triggered by an accident are factored into emotional anguish. Emotional pain can, often, impact our lives more long-term than physical pain. While physical injuries usually heal, emotional tolls and trauma can last a lifetime. 

 

Defining Monetary Value

There are a few things that are generally considered when trying to define the monetary value of one’s pain: the extent to which the injured party’s daily routine is limited or altered, how much the injury impacts relationships at home and work, how much the injury impacts sleep or other lifestyle factors, and to what extent the injury will impact the party long-term. 

Medical bills and surgery costs are frequently used as bench-marks for the monetary value of a physical injury. Again, emotional damages can be harder to calculate. However, as long as you have some evidence that the emotional pain you are experiencing was triggered by the event at hand and is thoroughly affecting your life, you should be able to negotiate a reasonable dollar value. 

 

Comparative Fault and Damage Limits

Because pain and suffering is hard to define, there is potential for people to abuse their ability to obtain pain and suffering damages. To limit these abuses, comparative fault rules and damage limits have been enacted in many states. While damage limits do prevent scammers from wrongfully winning large award sums, they also limit the recovery available for people who are legitimately injured and suffering immensely. Luckily, most attempts to place limits on pain and suffering damages in New Jersey have been denied. New Jersey has, however, adopted the modified comparative fault rules. This means your degree of fault in the accident proportionately limits the amount of recovery money you can recieve. For example, if you are 45% at fault, you will receive much less recovery money than if you are 15% at fault. Furthermore, if you are more than 50% at fault, you cannot receive any recovery money. It is best to discuss your accident with a lawyer to come to an accurate degree of fault. 

 

What’s the First Step?

If you have read this article and still believe you have a solid case, suing for pain and suffering damages may be the right next move for you. To begin this process, contact an attorney who specializes in personal injury matters. An attorney will help guide you through the complexities of a legal battle and assure you will receive the best possible outcome. David Kaplan, attorney at law, has the expertise and dedication to help you build a winning case. Throughout his 30+ year career, he has won over $10 million in verdicts for his clients. His passion for helping the everyday individual get the legal justice they deserve is unparalleled. For a free case evaluation, or to learn more, visit his website

 

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Employer Has Retaliated Against You

Title: What to Do If Your Employer Has Retaliated Against You

            In the state of New Jersey it is illegal for an employer to retaliate against an employee. For example, employees are protected from employer retaliation when filing a complaint, reporting workplace safety violations, refusing to commit an illegal act, or reporting illegal activity to an outside authority. If you have been retaliated against by an employer, it is important to know your legal rights under New Jersey labor laws. Here’s a deeper look into exactly what to do if your employer has retaliated against you and what activities are protected from retaliation under New Jersey law.

 

Protected Activities

            When bringing a retaliation claim to court, you must be able to prove you were engaging in a protected activity that then caused your employer to retaliate. There are quite a few protected activities under New Jersey law, here are the main ones:

 

            Common Law Protections

To begin, are those activities protected under public policy. These include reporting workplace safety violations, refusing to commit an illegal act, or reporting illegal activity to an outside authority. It is important to note, to be protected under public policy a report of wrongdoing cannot be done internally within the company. Rather, the report of wrongdoing must be brought to the attention of a public official. An internal report may, however, be protected under the general whistleblower protection statue called the Conscientious Employee Protection Act.

 

            General Whistleblower Protections

The Conscientious Employee Protection Act (CEPA) protects employees from retaliation if they have been a whistleblower. A whistleblower is someone who exposes private or classified information about an organization that is generally illegal or unethical. Thus, an employee may not be retaliated against for disclosing, or threatening to disclose, an activity, policy, or practice of an employer that is reasonably believed to be illegal, fraudulent, or criminal. To be protected under CEPA, the employee must first disclose the information to a supervisor. If the violation is not corrected by the supervisor, the information can be taken to a public body. Furthermore, under CEPA an employee is protected against retaliation when providing testimony to a public body conducting an investigation. Lastly, employees are protected against retaliation under CEPA when objecting or refusing to participate in illegal, fraudulent, or criminal activities, policies, or practices. There are also some additional protections under CEPA for certified or licensed health care professionals.

 

            Civil Service

An employee cannot be retaliated against for disclosing a violation of law, governmental mismanagement, or abuse of authority.

 

            Discrimination

Retaliation is illegal if an employee has opposed an unlawful discriminatory practice, filed a complaint, testified, or assisted in a proceeding concerning New Jersey’s laws against workplace discrimination.

 

            Family Leave Act

The Family Leave Act allows employees to request time off from work after the birth of a child or to help a family member with a serious health condition. An employee may not be retaliated against for opposing a practice that violates the Family Leave Act.

 

            Minimum Wage / Wage Discrimination

An employee may not be discriminated against in retaliation for serving on the wage board, filing a complaint, or testifying regarding minimum wage violations or wage discrimination laws.

 

            Workers Compensation

Finally, retaliation for claiming worker’s compensation benefits, or testifying in a worker’s compensation proceeding is also prohibited. 

 

You’ve Been Retaliated Against, What Next?

            If you can confirm that your employer has retaliated against you after engaging in one, or more, of the protected activities discussed above, you should contact a lawyer immediately. To remain valid, most retaliation claims must be filed within two years of the retaliatory act. An employee must file a lawsuit in the appropriate court, which may differ depending on the protected activity. Again, a lawyer would help clarify this.

 

Finding a Qualified Lawyer

            Legal matters can be complex and confusing. Having a qualified lawyer, who specializes in employment discrimination, will help you get the justice you deserve. David Kaplan, a New Jersey attorney, has dedicated his career to helping employees build strong legal cases to take to court. He has the expertise and passion to help hold your employer accountable. Visit his website or Instagram for more information or a free case evaluation.

           

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Filing Personal Injury Cases in NJ

The Ins and Outs of Filing Personal Injury Cases in NJ

            Personal injury claims can cover a wide range of situations or accidents. Everything from injuries caused by a car accident to a bite from the neighbor’s dog are considered personal injuries. However, to build a successful personal injury claim, there must be valid proof of injury and fault. Before embarking on any legal battle, it is important to first understand the specifics of a certain type of claim, the statute of limitations, and when to contact a lawyer for help. Below, we will explore the ins and outs of filing personal injury claims in NJ.

 

The Role of Negligence

            The basis of most personal injury claims in NJ is negligence. The plaintiff (person filing the lawsuit), most often must be able to prove that the defendant (person being sued) owed them a duty of care, but negligently or intentionally breached that duty, thus causing harm. With New Jersey being a modified comparative negligence state, a plaintiff is required to prove they are less than 50% at fault for their injuries. For clarity, this means the other party, the party being sued, must be over 50% responsible for the injuries caused.

 

What Will You Gain From Filing a Personal Injury Claim?

            Generally, what you are fighting for in a personal injury claim is compensation for damages. Damages refer to both the losses a victim suffered and the means of recovery. Some examples of damages covered by the state of New Jersey include: medical expenses, lost wages, mental anguish, household expenses, wrongful death damages, and punitive damages. Again, before deciding if a lawsuit will be worth it, it is important to understand the monetary value of your damages. If your injuries are minor, you might find that a simple insurance claim will provide efficient enough compensation. Furthermore, if your damages are worth more than $3,000, the settlement limit for small claims court in New Jersey, you may want to seek legal assistance.

 

Statute of Limitations

            Every state and every type of claim has different statutes of limitations. In New Jersey, you must file a personal injury claim within two years of sustaining an injury. These time limits help to preserve the integrity of evidence and eliminate the indefinite threat of lawsuits. If you file a personal injury claim outside of the two year window, it is likely the courts will refuse to hear your case. Nonetheless, there are some exceptions to the statute of limitations.

Getting the Best Settlement

            Most personal injury claims are settled before they are ever taken to court. In other words, the plaintiff and the defendant usually work together to negotiate a fair settlement amount without the need for a court case. Before entering these negotiations, have a minimum acceptable settlement amount in mind and never settle on the first offer. It is often useful to have a lawyer to help with negotiations when you are asking for compensation greater than a few thousand dollars, you are seeking future damages, or there is a question of fault. A lawyer will work with you to build the best possible case for getting you the settlement amount you deserve.

 

When to Get a Lawyer

            As mentioned above, to get the best settlement amount it may be advantageous to contact a lawyer. In fact, one study showed that legal assistance helped the average person gain 3.5 times more settlement money than those without. Additionally, if you are dealing with major injuries, struggling to prove fault, or believe you may have a case that is an exception to the statute of limitations, contact a legal professional for guidance. David Kaplan, a New Jersey attorney at law, has spent his 30 year legal career specializing in personal injury claims. His expertise paired with his dedication to justice will help you build the best legal case possible. For more information, or a free case evaluation, visit his website or Instagram.

 

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How Bill S-121 Further Protects Employees Against Discrimination

How Bill S-121 Further Protects Employees Against Discrimination

On March 18, 2019, Governor Philip D. Murphy signed into law Bill S-121. The bill was intended to benefit New Jersey employees by, among other things, amending the New Jersey Law Against Discrimination (NJLAD). N.J.S.A. §10:5-1 et seq. (“NJLAD”), Now, employers are prohibited from requiring their employees to waive statutory rights and remedies for claims of discrimination, retaliation or harassment. Ultimately, Bill S-121 further protects employees against discrimination by allowing them to fully exercise their right to a jury trial. Prior to the bill, employers in New Jersey could force employees to preemptively sign an agreement, waiving their rights to a jury trial under claims of discriminaiton, harassment or retaliation. Not only did this save employers time and money, it also allowed them to push harassment and discrimination issues under the rug.

 

The Effect on Employers

            For years, employers have tried to deprive New Jersey employees of access to courts and juries through loopholes in the NJLAD. Now, with the new amendment, the NJLAD can better protect all employees from discrimination and sexual harrasment. Essentially, the NJLAD allows a person to file a lawsuit in a state or federal court and request an unbiased jury to hear his/her claim. Documents waiving an employee’s rights to file lawsuits or request a trial are now deemed useless under the NJLAD. New Jersey employers must finally face claims of discrimination or harassment head on.

In addition, if an employer still tries to enforce such a waiver or attempts to retaliate against you for opposing such a waiver, you could have substantial rights and remedies under the amended law. Furthermore, the words of the amendment clearly state that waiving rights and remedies for discrimination, harassment, or retaliation claims are not just prohibited under NJLAD. It is also prohibited under “any other statute or case law,” thus any attempt by an employer to waive rights and remedies for discrimination claims are invalid. Employers should, and will now be, held more accountable for their discriminatory acts.

 

The Details You Should Know

            The amended law applies to all contracts and agreements entered into, modified, or renewed on or after March 18, 2019. Therefore, the amendment does not apply to contracts or agreements entered into prior to this date. If an employer still attempts to enforce a waiver provision that is deemed to be against public policy and unenforceable under this law, they will be liable for the employee’s reasonable attorney fees. In other words, if you feel your employer has wrongfully forced you to sign an agreement waiving your rights and remedies in relation to discrimination, harassment or retaliation claims, your employer may have to cover all attorney fees and costs for your case.

 

Have You Ever Signed Such a Waiver?

            If you read about the amended New Jersey Law Against Discrimination and feel your employer had you sign a unenforceable waiver contract, you have the right to an attorney and jury trial. Additionally, if you feel you have been discriminated against or harassed in the workplace, but have avoided filing a lawsuit due to waiver provisions, you are now covered under NJLAD. Lastly, if your employer has retaliated against you for not obeying waiver provisions, they may be liable for paying reasonable attorney fees and costs.

The bottom line is, if you are an employee in New Jersey and have waived your rights and remedies in relation to discrimination, harassment, or retalitation claims you are now protected by the amended NJLAD. If you have more questions, David Kaplan has dedicated his 30 year legal career to defending victims of workplace discrimination. His expertise and passion for justice makes him the ideal attorney for your discrimiantion case. For more information or a free case evaluation visit his website or check out his Instagram.

 

 

 

 

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LGBTQ+ Rights in the Workplace

LGBTQ+ Rights in the Workplace

            On June 15, 2020, the U.S. Supreme Court made history as they ruled that the 1964 Civil Rights Act (Title VII) protects gay, lesbian, and transgender employees from being discriminated against on the basis of sexual orientation or gender expression. Essentially, this ruling made it federally illegal to fire someone because they identify within the LGBTQ+ community. Prior to this ruling, only 22 states had laws that explicitly prohibited discrimination based on gender identity and sexual orientation. For years LGBTQ+ rights in the workplace have been neglected. The ruling in June signaled a major step towards justice. Below we will further discuss how LGBTQ+ rights in the workplace have progressed, what enforcing these rights looks like, and what progress is still to be made.

 

Federal Ruling vs. State Laws

            As previously mentioned, before the U.S. Supreme Court ruling, matters of workplace discrimination against the LGBTQ+ community were left to state legislators. Again, less than half of all the states had laws explicitly prohibiting discrimination on the basis of sexual orientation or gender expression. In 24 states, there was absolutely no legal protection for LGBTQ+ employees. In other words, in 24 states there were no legal repercussions for employers that blatantly discriminated against gay, lesbian, and transgender employees.

Workplace Discrimination based on Sexual Orientation

In addition, states that did have anti-discrimination laws still struggled to protect all LGBTQ+ workers in their states. For example, in 1992 New Jersey passed a law that prohibits workplace discrimination based on sexual orientation. In 2006, New Jersey expanded the law to include discrimination based on gender expression. However, some New Jersey employees were still not covered under this law. Some of these workers were employed by multi-state companies which make their employees sign agreements binding them to the laws of the other states where their company operates, states which may not have similar LGBTQ+ protection laws. Also, if an employee was working for a federal agency in New Jersey, they would not have been covered by New Jersey state law. Now, irregardless of state laws, a discrimination case can be taken to federal court and LGBTQ+ employees are protected under Title VII.

 

Why the Workplace is still Unequal for LGBTQ+ Employees

            While the Supreme Court ruling was a step in the right direction for LGBTQ+ rights, there is still a long way to go in claiming equality in the workplace. A major issue still facing LGBTQ+ employees is the disparity in healthcare access. Often HIV treatment drugs are not covered by company insurance plans, a rule that disproportionately harms gay and bisexual men. Hormone treatments are sometimes only covered for women going through menopause, excluding hormone treatments prescribed by doctors for transgender patients. Additionally, same-sex couples may be excluded from access to fertility treatments. Even furthermore, paid parental leave is often only granted to the birth-mom. This leaves working, same-sex couples unable to keep their job and care for their new baby.

Issues with Religion and Workplace Discrimination 

During the ruling, the Supreme Court also said they would not make a stance on firing due to religious beliefs or the issues regarding same-sex bathrooms and locker rooms. This means companies may still use religious reasons as a way to fire LGBTQ+ employees. It also means transgender employees will continue to be singled out when an issue regarding bathroom use and gender arise. It is clear there are many areas in which LGBTQ+ employees may still face discrimination in the workplace. The Supreme Court ruling was not an end-all solution to gender identity and sexual orientation discrimination, but it is a start.  

How to Enforce the Rights You Do Have

            If you identify with the LGBTQ+ community and feel that your rights under Title VII have been violated, it is important to take action for the justice you deserve. Pursuing an employment discrimination claim against an employer can be complicated. Depending on when and where you file your claim, procedural laws may vary. Therefore, it is helpful to have a lawyer guide and support you through the process. David Kaplan, a New Jersey lawyer, has dedicated 30 years to helping clients with employment discrimination claims. His expertise in unlawful discrimination and commitment to serving justice will ensure you the best possible outcome in filing your case. For a free case evaluation visit his website or check out his Instagram.

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Diving Into the Rule of Three

Diving Into the Rule of Three

 

The New Jersey Civil Service Commision has enacted the “Rule of Three” to further prevent unlawful discrimination, nepotism, or other types of favoritism in civil service agencies and departments. This law requires that all hiring and promotions be based on merit and demonstrated ability. In order to ensure this, applicants for a job must be judged through an objective examination whenever possible. Following the examination, a list of the three most qualified candidates is formed. The appointer of the position must choose from this list. If they do not choose to appoint the first ranking, most qualified, candidate they must provide a written statement with valid reasons why they chose one of the lesser ranking candidates. Ultimately, this rule is intended to help hardworking, qualified people continue to progress their career and work to eliminate hiring biases. Below we will be diving into the Rule of Three discussing who it affects and how.

 

Hiring Biases and Discrimination in 2020

            While it may seem obvious that the most qualified candidates should be those considered for a position, there is no denying the prevalence of discrimination in the workplace still. In 2019, the Equal Employment Opportunity Commission reported 1,480 discrimination lawsuits in New Jersey. Surprisingly, this was the lowest reported number in 9 years. The addition of anti-discrimination laws, such as the Rule of Three, have brought awareness to discrimination patterns and forced institutions to remain accountable. In fact, a report by the U.S. Merit Systems Protection Board, showed employees perceptions of all types of discrimination in the workplace have decreased significantly from 1992 to 2010. Having explicit laws that outline stringent requirements to avoid hiring biases, ultimately, makes it easier to prove when discrimination is present.

Third Party Examiners

In addition, the Rule of Three works to eliminate hiring biases by involving third party examiners. In many private businesses especially, it pays to have connections. Nepotism and favoritism often cause well-deserving people to miss out on job opportunities and promotions. Favoring someone based on familial ties or personal affinities does not assure the most qualified person is rewarded with growth opportunities. While this cannot be as well regulated in the private sector, in civil service positions it is important to assure all citizens have equal opportunity to grow their career. Plus, it is important that our governmental roles are filled with the most qualified people for the job in order for our country to operate most effectively. Third party examiners eliminate nepotism and favoritism from the hiring process by simply focusing on the merit and demonstrated ability of applicants.

 

How the Rule of Three Can Be Used in a Court of Law

            Again, rules and laws condemning workplace discrimination can make it easier to prove when an act discrimination has happened. For example, the Rule of Three requires that a written statement with valid reasons must be given in the event that the top ranked candidate is not appointed for the position. If the person passed up for the position feels they are a victim of discrimination, the courts have a written document to examine and conclude if the reasons given were valid. Furthermore, if the reasons given are not adequately explained, a court can automatically order that the institution did not satisfy the Rule of Three.

 

What to Do If You Are A Victim of Discrimination

            If you live in New Jersey and feel you have been a victim of unlawful discrimination under the Rule of Three, or any other anti-discrimination laws, you have legal rights. Employment claims can, however, involve many complex legal questions. Lawyer David H. Kaplan has 30 years of experience dealing with New Jersey employment cases and is dedicated to protecting your rights. For a free case evaluation, visit dkaplanlaw.com or check out his Instagram.

           

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Response to COVID Harassment

Response to COVID-Related Harassment

 

As the novel COVID-19 virus continues to spread tension across the nation, laws continue to be put in place to deal with the consequences. One such unfortunate symptom the virus has brought with it, is a staggering number of reports of discrimination and xenophobia that several lawyers say they haven’t seen since the aftermath of the Sept. 11, 2001  terrorist attacks. Such intense circumstances call for strong measures, as the government is forced to take action. So, what exactly are state and local governments in the tri-state area doing to thwart the social and cultural symptoms of this virus? Let’s take a look at the New Jersey and New York City response to COVID-related harassment.

New York City’s Commission on Human Rights has created a COVID-19 response team due to the spike in reported harassment and discrimination stemming from the pandemic. The team has investigated countless matters, all of which included discrimination allegations of some sort, in “housing, public accommodations and employment on the basis of race, national origin, disability and lawful source of income.” New York City is home to one of the strongest anti-discrimination laws in the nation, the New York City Human Rights Law, which prohibits harassment and discrimination in housing, employment, and public accommodations. The Commission has the authority to award injunctive relief as well as compensatory damages to victims, including emotional distress damages and other benefits, and can deter future violations by ordering civil penalties of up to $250,000 for willful and malicious violations of the law. The Commission can also order trainings on the NYC Human Rights Law, changes to policies, and other forms of relief, such as community service and mediated apologies. Since the beginning of the COVID-19 outbreak, they have been working with community organizations to track and monitor reports of discrimination. Their Community Relations Bureau (CRB) has also held bystander intervention trainings with the Center for Anti-Violence Education that provide techniques to safely de-escalate a bias incident in real time.

Following suit with NYC, in March of 2020, the New Jersey Division on Civil Rights (DCR) released a Guidance addressing frequently asked questions regarding COVID-19, and, more specifically, the protections and obligations under the New Jersey Law Against Discrimination (NJLAD). The NJLAD prohibits discrimination and harassment on the basis of actual or perceived race, religion, national origin, gender, sexual orientation, gender identity or expression, disability, and other protected characteristics in employment, housing, and places of public accommodation. The NJLAD also requires an employer, housing provider, or place of public accommodation to take action to stop such harassment, if it knows or should have known about it. The DCR stressed that these protections still apply if the issue stems from COVID-19-related concerns and offers the following examples to illustrate:

  • It is unlawful for your employer to fire you because you coughed at work and they perceive you have COVID-19, which is characterized as a disability under the law.
  • If an employee of east-Asian heritage is harassed by a coworker claiming that Asian people caused COVID-19 or calling the virus “the Chinese virus,” an employer who knows or should have known about the harassment must take action to stop the conduct.
  • The NJLAD prohibit retaliation against a person for complaining about discrimination or bias-based harassment will be extended to conditions related to COVID-19. This means an employer also cannot fire an employee for reporting COVID-19-related harassment to human resources.

 

Although COVID-19 may be novel, there are laws already in place that establish protections, obligations, and benefits related to COVID-19. The DCR makes it clear that COVID-19-related issues are afforded the same protections under the NJLAD and the NJFLA, as any other claim of discrimination or retaliation, and will be addressed in the same manner. If you or someone you know might be facing harassment or bias claims, in the workplace or otherwise, you should contact The Law Office of David H. Kaplan. David Kaplan is an experienced litigator with a wealth of knowledge and expertise with the wisdom gained therein, and can help you fight back legally within the area of employment discrimination, harassment, and anything of the sort. For more information, visit dkaplanlaw.com/

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