Employment Law Monitor : Employment Lawyer & Attorney : Cole Schotz Meisel Forman & Leonard Law Firm : NJ, Mid-Atlantic Wage & Hour, Wrongful Termination

The United States Department of Labor has just announced that it is raising fines for employers that illegally employ child workers. Under its new, tougher penalty structure, employers who illegally employ minors will face penalties of up to $11,000 per worker for each violation. When children work, the work must be age appropriate, safe and it must not interfere with their schooling.

No minor under the age of 18 may work in hazardous jobs. Similarly, no minor under the age of 16 may work in, about or in connection with, power driven machinery.

With regard to hours of employment, with limited exceptions, no minor under 18 may work more than six consecutive days in one week, more than 40 hours in one week or more than eight hours in a day. No minor between 16 and 18 may work before 6 a.m. or after 11 p.m. They may, however, work after 11 p.m. during school vacations and on days which do not precede a regularly scheduled school day, provided they have written permission from their guardian. Similarly, they may work in a seasonal amusement or restaurant after 11 p.m. and into the following day if they start their shift before 11 p.m. either during any regular school vacation period or on workdays which do not begin on a day which precedes a regularly scheduled school day. However, under no circumstances may a minor between 16 and 18 work after 3 a.m. or before 6 a.m. on a day which precedes a regularly scheduled school day.

With regard to breaks, no minor under the age of 18 may be employed or allowed to work for more than five continuous hours without at least a thirty (30) minute lunch break.

There are also special schedule posting and recordkeeping requirements for minors, and employers are subject to criminal penalties for violating either state or federal wage and hour laws relating to minors. Each day, and with respect to each minor, constitutes a separate offense. Finally, minors may sue employers in court for work related injuries, unlike adults who must bring a workers' compensation claim.

Considering that state wage and hour laws may differ, employers outside New Jersey need to consult their state's laws.
 

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According to the New Jersey Supreme Court in Nini v. Mercer County Community College (decided June 1, 2010), New Jersey employers can refuse to hire or promote individuals who are over 70 years of age on the basis of age, but will violate the New Jersey Law Against Discrimination (“LAD”), N.J.S.A. 10:5-1 et seq., if the employer refuses to renew a contract for the same reason. LAD prohibits an employer from refusing to hire, firing or otherwise discriminating against an employee because of a protected category such as age. However, LAD contains what is known as the “over 70 exception”, which provides that, “nothing herein contained shall be construed to bar an employer from refusing to accept for employment or to promote any person over 70 years of age….” N.J.S.A. 10:5-12(a). Thus, a New Jersey employer can refuse to hire or promote an individual who is over 70 years old on the basis of that individual’s age without running afoul of LAD. The Court in Nini, however, held that the “over 70 exception” does not apply to the non-renewal of a contract, likening a non-renewal to a termination, which is unlawful, instead of a refusal to hire. In reaching this holding, the Court relied upon LAD’s remedial nature and strong public policy of eradicating discrimination in the workplace.

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New York City employers should take note of a recent decision that will make it easier for employees to hold employers liable for harassment in the workplace. Since the late 1990s, many employers have relied upon what is commonly termed the “Faragher-Ellerth Defense” to defend against claims of unlawful harassment. On May 6, 2010, in Zakrzewska v. The New School, 2010 WL 1791091 (2010), the New York Court of Appeals (New York’s highest Court) held that the Faragher-Ellerth Defense is not available to claims brought under New York City’s Human Rights Law (“NYCHRL”).

Under Supreme Court decisions, Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), an employer is entitled to an affirmative defense against a harassment claim where: (i) there is no tangible employment action (i.e., the employee is not terminated, demoted, subject to reassignment), (ii) “the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior,” and (iii) “the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Zakrzewska v. The New School, 598 F.Supp.2d 426 (S.D.N.Y. 2009). In other words, where the employer has taken all appropriate action and the employee declines to avail him/herself of the policies and opportunity for correction, the employer may avoid liability for harassment. This defense has proven quite valuable to diligent employers.

The Zakrzewska Court based its decision to reject this defense on the specific language of the NYCHRL, as well as its legislative history. The Court noted the law’s language, which provides that anti-discrimination policies and procedures may be considered “in mitigation” of the amount of penalties and punitive damages awarded. However, the Court held that under the NYCHRL such policies do not provide an absolute defense to such claims.

The impact of this decision is that it will now be easier for employees to bring harassment claims under the NYCHRL and to hold employers liable for their supervisor’s actual harassment and/or failure to properly respond to claims of harassment in the workplace. Given Zakrzewska, it is even more important for New York City employers to establish suitable anti harassment workplace policies and train supervisors regarding appropriate workplace conduct.
 

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