When Does Sexual Harassment at Work Become a Crime?

When Does Sexual Harassment at Work Become a Crime

Victims of workplace sexual harassment can be greatly impacted. They might have trouble performing the tasks of their jobs. They may also be prevented from getting promotions and might also lose their jobs. While workers are able to seek relief through the civil process for workplace sexual harassment, the civil laws do not make the conduct criminal.

In some cases, however, sexual harassment may cross the line into criminality. If the conduct that has been directed at you is also criminal in nature, it is important for you to recognize it and to understand what to do. The experienced lawyers at Swartz Swidler might help you with the civil process while also advising you about how to report the conduct to the authorities.

Understanding sexual harassment

Under Title VII of the Civil Rights Act of 1964, the New Jersey Law Against Discrimination and the Pennsylvania Human Relations Act, workplace sexual harassment is a prohibited form of sex discrimination. It consists of sexual conduct that is unwelcome and that is either used as a basis for making employment decisions or that creates a workplace environment that is hostile.

Sexual harassment may include physical and verbal actions such as repeated comments, requests for sexual acts, unwanted touching, unwanted advances and sexual acts. In some cases, prohibited sexual harassment may also be criminal.

When does sexual harassment rise to the level of a crime?

Some forms of sexual harassment are obviously criminal in nature such as a sexual assault at work. Others are not as clear such as verbal sexual harassment. The local criminal laws in your jurisdiction will control whether such conduct is also a crime. Here are several examples of state law that might make workplace sexual harassment criminal in nature.

Rape, unwanted touching and sexual abuse

Rape is illegal under the laws of Pennsylvania and New Jersey and includes penetration without consent. In addition, criminal sexual contact may include unwanted touching of a victim’s sex organs or forced touching of the perpetrator’s sex organs. The unwanted touching can be over clothing and still be criminal if it is done without consent.

  • Assault

In some cases, a person may be physically assaulted by a harasser. Even if the assault is not a sexual assault, the physical contact may be a crime. Examples of criminal assaults that might be done for purposes of intimidation may include such things as hitting, pushing or other physical contacts. If you are assaulted at work by your harasser, you may press criminal charges in addition to filing discrimination complaints. Your attorneys at Swartz Swidler can help to guide you through the process.

  • Menacing

Under the laws of New Jersey and Pennsylvania, menacing can constitute a simple assault. Menacing occurs when the harassers make physical threats against the victims in an effort to place them in imminent fear of injury or death through threats. Menacing is a crime in both states.

  • Stalking

Commonly, sexual harassers at work engage in a pattern of ongoing behavior. If the conduct is repeated, it may fall under the definition of stalking. The harassers may be guilty of criminal stalking when they engage in repeated acts that cause the victims to feel reasonably fearful for their own safety or that of others. An example of this type of conduct could include repeated phone calls or text messages from a coworker or supervisor or being repeatedly followed.

  • Unlawful imprisonment

If your movement at work is restricted by another person at your job, it might rise to the level of criminal unlawful imprisonment. Unlawful imprisonment occurs when your movement is restricted in such a way that your liberty is substantially limited. In the context of workplace sexual harassment, you may be unlawfully imprisoned if your supervisor or a co-worker demands sexual favors or makes unwelcome sexual advances in an office and prevents you from leaving.

What to do if you have been the victim of criminal conduct and sexual harassment

If you have been the victim of sexual harassment that rises to the level of a crime at your job, you should report what happened to the police. Law enforcement authorities can help you with filing your criminal complaint. You should also contact the employment lawyers at Swartz Swidler for advice about your corresponding civil claim. You may be able to receive redress through both the criminal and civil justice systems.

Contact Swartz Swidler today to learn more about how to handle your case.

What You Need To Know About Wrongful Termination In New Jersey

What You Need To Know About Wrongful Termination In New Jersey

It is common for people to feel like they were fired for reasons that were unfair when they are terminated from their jobs. However, most people in New Jersey are at-will employees, meaning that their employers may fire them whenever they want and for nearly any reason. There are some reasons for terminating workers that are illegal. When employers fire workers who are members of protected classes because of their statuses, the terminations are considered to be illegal. If you believe that you lost your job because of your membership in a protected class, the attorneys at Swartz Swidler might be able to help you.

Under New Jersey law, the protected classes include the following:

It is also illegal for employers to fire workers for engaging in protected conduct, including the following:

  • Serving in the military
  • Complaining about discrimination to your supervisor
  • Complaining about actions of your employer that you believe to be fraudulent or illegal

What does at-will employment mean?

New Jersey is an at-will employment state. This means that you can be fired at any time and for any reason. You also are able to leave your job whenever you want. Most employees work at will in the state. If you instead have a contract that protects your job, you are not an at-will worker. In that case, your employer must adhere to the provisions of your contract.

Even if you are an at-will employee, your employer still is prohibited from terminating you based on your protected class or your engagement in protected activities because the termination would be in violation of public policy or of the law. You may also have grounds to sue if you have an implied or express contract. An implied contract might exist if you have a handbook that includes language regarding the disciplinary process that must be followed leading up to termination, for example.

Get help from an experienced employment lawyer

Determining whether or not your termination was wrongful may be difficult. The employment lawyers at Swartz Swidler are experienced in handling wrongful termination claims and can offer you honest evaluations of your claim. Contact our office today to schedule an appointment so that you can learn more about your case.

Payday Laws: What To Do If Your Paycheck Is Late

Payday Laws What To Do If Your Paycheck Is Late

The laws of Pennsylvania and New Jersey determine how often employees in both states must be paid. In both states, employers are required to pay their workers at least twice each month, but they are allowed to pay them more frequently if they wish. These laws do not cover independent contractors. Instead, their payments should be spelled out in their written contracts. People who are incorrectly classified as independent contractors are covered under the laws. If you are not receiving your pay on a timely basis, the employment lawyers at Swartz Swidler might be able to help.

Payday laws

The laws that govern the regularity and frequency of paychecks vary between the states, but a majority operate in similar fashions. For instance, most states mandate that employees are paid weekly, biweekly, semi-monthly or monthly. Pennsylvania and New Jersey both mandate that employees are paid twice each month although they may pay them differently if they stipulate to doing so in an employment contract.

In New Jersey, highly paid executives and non-exempt employees may be paid once monthly by their employers. Pennsylvania’s law mandating at least twice-monthly payments applies to non-salaried workers.

What you can do if your paycheck is late

There are several things that you can do if your paycheck is late. It is important to start by contacting your employer in writing. You should ask that your employer pays the wages that you are owed. If your employer does not do so, then you can file a claim with either the Pennsylvania Department of Labor and Industry or the New Jersey Department of Labor and Workforce Development.

You can also file a lawsuit against your employer in court. If the amount in question is small, you can file a small claims lawsuit. If not, you can file it in a higher-level court. If you have a large claim involving late payments or violations of payday laws, you might want to consider hiring an employment lawyer for help.

Contact an experienced lawyer

Employers in New Jersey and Pennsylvania are not allowed to pay their employees whenever they want. They must adhere to the state and federal laws. If you have not been paid for your work, it can cause a domino effect for your finances. Contact Swartz Swidler to find out what you might do so that you can recover the money that you are owed.

How Much Can I Get When Suing My Employer For Discrimination?

How Much Can I Get When Suing My Employer For Discrimination

People who have been the victim of workplace discrimination or harassment might wonder how much they might expect to recover if they file lawsuits against their employers. While some cases do proceed to trial, a majority are settled outside of the court process. If you have been the victim of discrimination or harassment at your job, the attorneys at Swartz Swidler might value your claim and advise you of the amount that you might expect to recover.

Income losses

If you were fired from your job illegally, you may recover the salary and benefits that you would have received if you were not fired. It is important for you to understand that you are expected to have tried to mitigate your damages by trying to find a new job. If you haven’t attempted to do so, your claim’s value may be significantly reduced.

Emotional distress damages

In some cases, workers are able to successfully sue for the emotional stress that their employers’ conduct has caused them. In order to prove that you have suffered emotional harm, you will likely need to have a mental health professional testify on your behalf. You will not need to have been diagnosed with a condition such as anxiety or depression. It is possible to recover damages for the type of stress that people experience when they are terminated from their jobs.

Are you in a position to file a lawsuit?

An employment lawyer at Swartz Swidler may discuss several things with you in order to determine whether or not you are in a position to file a lawsuit against your employer. Your lawyer will explain that lawsuits are very long and sometimes take years before they reach settlements. Employers often defend against lawsuits aggressively and are slow to settle because of concerns that other workers will also file lawsuits.

Your attorney might also explain that your former employer may attack your reputation. In order to defend against claims of discrimination, some employers claim that they had other reasons to fire their employees. To make these claims, they may try to prove that you were a poor employee.

You will need to evaluate the strengths and weaknesses of your claim. Then, you will need to work together with your attorney to determine what a reasonable demand for settlement should be. Finally, you will need to decide whether or not you are willing to go through the lengthy process so that you can potentially recover compensation and hold your employer accountable.

How strong is your claim?

Your attorney will also evaluate the strength of your claim when determining its value. If it is not a strong case, the attorneys at Swartz Swidler will provide you with an honest assessment.

The attorneys at Swartz Swidler are focused on employment law and work hard to help their clients who have suffered from illegal discrimination. If you believe that your employer has discriminated against you, contact us today to schedule your consultation.

Were You Forced To Quit? Understanding Constructive Discharge

Were You Forced To Quit- Understanding Constructive Discharge

It is fairly common for some employees to quit their jobs because they find the working conditions to be intolerable. A constructive discharge occurs when an employee is forced to quit because of working conditions that are illegal. Even if you quit your job, you may have valid grounds to file a wrongful termination lawsuit if your employer attempted to force you out for illegal reasons. The attorneys at Swartz Swidler may be able to help you to determine whether or not you have the grounds for a lawsuit.

What is a constructive discharge?

If you felt that the conditions at your job were so bad that your only choice was to quit, it is a constructive discharge. Under the law, you will be treated as having been fired because you were pushed out.

Proving that you had no choice but to quit

In order to prevail on a constructive discharge claim, you will need to be able to prove the following elements:

  • The working conditions that you were subjected to were illegal.
  • You filed a complaint about the conditions, but the conditions continued.
  • The conditions were so poor that any reasonable person in your position would have quit.
  • You quit your job because of the poor treatment that you received.

If you prevail in a claim of constructive discharge, you will be able to recover monetary damages from your former employer.

Proving that your constructive discharge was illegal

A majority of employees are at will, meaning that their employers can fire them at any time as long as the reason for doing so is not illegal. Simply proving that you were forced to quit is not enough. You must also prove that the reason that you were forced to quit were illegal. Examples of illegal reasons could include ongoing sexual harassment, retaliation for complaints and others.

Discrimination and harassment

If you are a member of a protected class and were discriminated against by your employer or coworkers, you may have a constructive discharge case if you quit because of it. You may want to ask your lawyers at Swartz Swidler if you have sufficient grounds under this basis.


Employers are prohibited under multiple state and federal laws from retaliating against workers for engaging in a protected activity. This may include filing discrimination complaints, applying for workers’ compensation benefits, whistleblowing or complaining about sexual harassment. If your employer took any adverse job action against you, you may have the grounds to sue.

Breach of contract

If you were employed under a contract that stated that you could only be fired for cause, you may be able to sue your employer for breaching the contract if he or she forced you to quit.

Potential damages

If you prevail on your claim, your employer will have to pay you monetary damages. The damages that might be available to you will depend on why your employer forced you to quit. You may be entitled to the following:

  • Back pay
  • Front pay
  • Legal and attorney fees
  • Compensatory damages
  • Punitive damages if your employer’s actions were especially egregious
  • Unemployment Benefits

Employees who quit their jobs voluntarily are normally ineligible for unemployment benefits. However, you may be able to collect them if your quitting was a constructive discharge. You will need to explain that you quit because of your employer mistreating you when you apply.

Contact an attorney

Proving a constructive discharge claim may be difficult. If you believe that your employer forced you to quit because of an illegal reason, contact Swartz Swidler to learn more about the rights that you might have.

Can I Be Fired Because of My Tattoos?

Can I Be Fired Because of My Tattoos-

If you have tattoos, you might wonder if it is legal for your employer to fire you because of them or to make you cover them while you are working. Whether or not your employer can fire you for your tattoos or require you to cover them will depend on the dress code and grooming policies that your employer has in place. It will also depend on whether or not your employer is consistent in enforcing those policies and whether or not your tattoos have religious significance for you. The attorneys at Swartz Swidler might help you to determine if you were treated wrongfully because of your tattoos.

Employer grooming and dress code policies

Employers are allowed to implement grooming standards and dress codes in their workplaces. For instance, a doctor’s office might require front-office employees to dress in business clothing while a restaurant might mandate that its servers wear pants and shirts of specific styles and colors.

Some workplaces likewise have policies about employees who have tattoos. They might ask that employees cover them up while they are working with clients or customers. Appearance policies are legal unless they violate federal and state laws that prohibit discrimination. These policies may also be illegal if they are applied in discriminatory ways.

Anti-discrimination laws

Employers are prohibited from taking adverse job actions based on certain protected characteristics, including color, race, sex, national origin and religion. There are also laws prohibiting discrimination on the basis of age, disability and genetic information. In New Jersey, the Law Against Discrimination provides protection under state law.

Employers who apply their grooming policies in discriminatory ways may be in violation of the law. For instance, if employers require their Hispanic workers to cover their Spanish-language tattoos because they believe that they might be perceived as gang-related, that would be prohibited discrimination based on the workers’ national origin. Employers who enforce their policies on the basis of sex may also be in violation of the law.Some employees with religious tattoos who were asked to cover them or fired because of their tattoos have sued on the basis of religious discrimination.

Freedom of speech

Some people think that their First Amendment rights are violated when their employers require them to cover their tattoos. The First Amendment only protects people from governmental efforts to stifle speech. Private-sector employers are private actors and are not covered under the requirements of the First Amendment.

Contact an experienced employment law attorney

If you believe that your employer applied its appearance policy in a discriminatory way against you, you might be able to file a lawsuit. Contact Swartz Swidler to schedule your consultation today.

Common Mistakes Employers Make Concerning The Older Workers’ Protection Act

Common Mistakes Employers Make Concerning The Older Workers' Protection Act

Many employment law attorneys receive requests to review severance offers. If you have received a severance offer, you may want to have your offer reviewed by an experienced attorney at Swartz Swidler to make certain that it complies with the requirements of the Older Workers’ Benefit Protection Act, or the OWBPA. Roughly half of all severance offers do not comply with the OWBPA.

OWBPA requirements for a release of age discrimination claims

Many severance offers will ask workers to release their rights to file age discrimination claims. In order for these to be valid, they must adhere to the following:

  • The waiver must be understandable and in writing.
  • It must refer to ADEA claims or rights.
  • The employee cannot waive claims or rights that might arise in the future.
  • Valuable consideration must be offered in exchange for the waiver, which must be more than the employee is otherwise entitled to receive.
  • The employee must be advised in the waiver in writing to consult with a lawyer before signing.
  • The employee must be given at least 21 days to consider the waiver agreement and at least seven days to revoke it after signing.

Any severance offers to employees who are older than 40 must comply with these requirements. Waivers that are requested in connection with a workforce reduction have additional requirements.

Waivers in workforce reductions

When waivers are requested as parts of the severance offers that are extended to a group or class of employees, each individual employee must have at least 45 days to decide whether or not to agree to the waiver instead of 21 days. The workers must also be given a list of the ages and job titles of those who are eligible for the program along with the ages of those people in the same unit or with the same job classification who were not selected for the program.

This means that employers who are offering severance packages to reduce their workforces must give all of their employees who are 40 or older with a list of the employees in the same unit who are being offered the severance package in order to waive their claims. The employers must also disclose the eligibility criteria that they used for the severance programs. If the employers fail to comply, the waivers will be invalid.

Contact Our Attorneys

If you are older than 40 and have been offered a severance package in exchange for a waiver of your rights under the ADEA, you might want to consult with the experienced employment lawyers at Swartz Swidler. Our attorney may help you to evaluate the waiver and determine whether or not it complies with the OWBPA. Contact us today to learn about your rights.

7 Things You Didn’t Know About Pregnancy Discrimination

7 Things You Didn't Know About Pregnancy Discrimination

If you are pregnant and employed, you are protected by the Pregnancy Discrimination Act. This law protects working women who become pregnant by prohibiting discrimination based on pregnancy. Despite this law, some employers still discriminate against pregnant workers. If you believe that you have been the victim of pregnancy discrimination, the attorneys at Swartz Swidler might be able to help you.

It is important for you to understand your rights as a pregnant employee. Here are seven important things that you need to understand about workplace pregnancy discrimination.

1. PDA prohibits discrimination in all employment aspects

You are protected under the PDA in all aspects of employment, This includes hiring, promotions, firing, salary and other benefits. Your employer may not have policies that prevent women from doing certain jobs just because they are pregnant or capable of becoming pregnant. Policies that have a disparate impact on women because of pregnancy or fertility are also prohibited.

2. Covered workplaces

Employers who have 15 or more employees are covered by the PDA. If your workplace has fewer than 15 employees and is in New Jersey, your employer is also covered under the New Jersey Law Against Discrimination.

3. Retaliation is prohibited

Retaliatory employment actions by employers against pregnant workers are also prohibited. If you are fired because you filed a complaint about pregnancy discrimination, you may have grounds to file a suit for retaliatory discharge as well as pregnancy discrimination.

4. Promotions

It is illegal for employers to pass over workers for promotions simply because they are pregnant. This may constitute a violation of the PDA.

5. Pregnancy and maternity leave

If you need to take maternity or pregnancy leave, the PDA mandates that your job must be held open for you just as long as it would be held open for a worker who is on leave because of a disability or illness.

6. Disclosure is not required

You are not required to inform potential employers or your current employer about your pregnancy. Employers are forbidden from refusing to hire workers because they are pregnant as long as they are able to perform the functions of their jobs. They also cannot ask workers if they are pregnant or if they plan to get pregnant in the future.

7. Some organizations can treat pregnant, unmarried women differently

Courts have held that certain religious organizations or companies that work with young people may discriminate against workers who violate the standards against premarital sex. Employers who do this must also treat men who engage in premarital sex in similar fashions. At a majority of companies, pregnancy-related benefits may not be limited to only those employees who are married.

How to complain

If you believe that your rights have been violated under the PDA, you can file a discrimination charge with the Equal Employment Opportunity Commission. It is important for you to act quickly because the deadline for the complaint is normally within 180 days of the discriminatory act.

When you are preparing to file your charge, make certain to write down everything that happened, including the place, date and time of the incident. It is important to do this as soon as possible after it happens. Keep copies of your notes at your home.

If your company has a union representative, talk to him or her. You should also speak to your employer and check your employee handbook. Continue doing a good job at work and keep a record of it. Keep copies of all of your job evaluations along with any memos or letters that document your job performance.

While you are not required to have an attorney to file a discrimination charge, you might benefit from getting legal help. Contact Swartz Swidler to schedule your consultation today.

What You Shouldn’t Say To An Employment Lawyer

What You Shouldn't Say To An Employment Lawyer

You may believe that you have an excellent legal claim against your employer because you have researched your issue and have found a lawyer that you believe is right for your case. When that lawyer says no, you try again. That lawyer also declines to represent you, leaving you to wonder what was wrong.

It is possible that your case is not as good as you believe that it is. It may also be possible that you said something to turn the attorneys away. There are few employment lawyers who represent employees who are available, and there are even fewer who have experience. Experienced employment attorneys like the lawyers at Swartz Swidler are extremely busy. If you contact lawyers, it is important for you to understand what to avoid saying to keep them from turning you away regardless of how solid your case might be.

1. This is an easy win for you

In employment law, there is no such thing as an easy win. If your case is really that strong, you wouldn’t need a lawyer. Becoming an employment attorney involves four years of undergraduate education, three years of law school and years of practice. In employment law, a majority of plaintiffs do not win. Your attorney at Swartz Swidler will work hard to win for you. If your case settles early, it is likely because of your lawyer’s reputation, skill and experience rather than the easiness of your claim.

2. You will not agree to settle for less than seven figures.

There are caps on the recovery amounts for most employment law claims. Even when there are no caps, it is rare for employment cases to return settlements of seven figures or more. When you say this, your attorney hears that you are unrealistic and that you will be a difficult client. Insisting on a trial may make it less likely for you to win if your attorney has recommended that you accept a settlement offer.

3. Your employer will settle to avoid bad publicity.

Many employers do not settle to avoid publicity, and some litigate more fiercely when there is the increased pressure of it. Employers understand that it is difficult for plaintiffs to succeed at trial in employment law cases. Your attorney will need to be able to show the defense attorney that there is merit to your claim in order to secure a settlement, and he or she is not allowed to make threats of talking to the media about your case if your employer doesn’t agree to settle.

4. You’re the seventh lawyer who I’ve interviewed.

Attorneys immediately wonder why none of the other attorneys wanted your case when you tell them that you have interviewed numerous lawyers. They take these kinds of statements as meaning that there is something wrong with your case or that you are simply playing games. There is no need to attempt to pit lawyers against one another, and it is a turnoff when prospective clients try to do so. It is perfectly fine for you to interview several lawyers, but it is not a great approach to broadcast that.

5. Other lawyers said they’d charge me less.

If you have received a lower quote, accept it if you’d like. When you are dealing with an experienced attorney, you should expect to be charged more.

6. The last lawyer that you had attempted to throw you under the bus.

It is a huge turnoff when people claim that their previous attorneys tried to force them to accept unreasonably low offers. Many employment lawyers work on either a partial- or full-contingency basis. It is highly unlikely that an attorney whose best interest is served by securing you the highest possible settlement would push you into accepting a low offer. In addition, if you are unable to work with one attorney, others may worry that you may be unable to work with them as well.

7. You were told something different by our staff.

We work with our staff closely. When we hear our office staff answer calls, we sometimes later talk to prospective clients who misquote what they were told by them. This may include incorrect fee quotes, incorrect information about their cases or other things. Misrepresenting what the legal staff has told you scores very few points with employment lawyers.

8. You want to be represented on a pro se basis.

If you need free legal help, you should check with Legal Services of New Jersey or the Pennsylvania Legal Aid Network. Most employment lawyers cannot afford to work for free. There are no-cost services that might be available to you through one of those organizations.

9. You’d like to negotiate the fee that you were quoted over the phone.

When we quote fees, that is our cost. We will not agree to negotiate our fees down or to work for free.

10. You forgot your appointment, or you give another excuse for skipping your appointment.

Lawyers have limited time just like everyone else. When you do not respect the time constraints that they have, they are less willing to work with you. If you can’t attend, be courteous and cancel with enough notice that they can fill their time slot.

11. You didn’t complete the questionnaire.

Don’t refuse to provide the requested information. Your attorney will use it to evaluate your claim.

11. You failed to bring in the requested paperwork.

If your attorney has asked that you bring in important documents, do so. They should be organized in such a way that you can find the documents that you need. Attorneys do not have the time to sort through disorganized paperwork or to try to locate the documents that you should have.

12. You’ll do all of the work for the lawyer.

When you show up with binders full of legal research and tell the attorney that you will do everything, the lawyer is unlikely to accept your case. Lawyers attend law school for a reason, and they do not enjoy being second-guessed and micromanaged by their clients.

If you need the help of an employment attorney, it is important to always remember to offer them the same level of respect and professionalism that you expect for them to give your case. It is also important to always be courteous to their office staff. After you do retain your lawyer, maintaining a good relationship is quintessential to your case.

If you would like to learn more about your own case, contact the experienced team at Swartz Swidler today.

7 Things Restaurant Employees Should Look Out For

7 Things Restaurant Employees Should Look Out For

With the changes brought on by the new administration, there are multiple legal issues that may come to the forefront in employment law for the restaurant industry in 2017. Here are some areas that the employment law team at Swartz Swidler believes that you should watch.

Joint-employer liability

Liability issues in a case that is currently on appeal following a National Labor Relations Board decision may have an impact on liability within the restaurant industry, including questions about whether franchisees or franchisors are liable in lawsuits. The case likewise raises questions about liability when contractors are involved.

in the case, the NLRB changed its test for what is required to establish joint-employer reliability. Traditionally, the test focused on wage and supervisory decisions, control and direct and immediate control. The elements were eased, broadening when joint-employer liability might be found. The new standard allows joint-employer liability when a company exercises indirect control over workers. If this rule stands, then multiple other parties beyond the direct employer may be liable for labor violations.

Minimum wage

Many restaurants run into problems with their wages. While the federal minimum wage is set at $7.25 per hour, New Jersey’s minimum wage is $8.44 per hour. In Pennsylvania, the state’s minimum wage is $7.25 per hour, but there is a pending bill in the state’s House to raise it. Trump said during the early part of his campaign that he would be in support of increasing the federal minimum wage to $10 per hour, but the current political climate suggests that is unlikely, leaving it to the states to raise their own state minimums.


The U.S. Department of Labor published its final rule about overtime in early 2016, which would increase the annual salary threshold for administrative, executive and professional employees from $23,660 to $47,476. Under the rule, those employees who make less than the threshold amount would be eligible for overtime pay and minimum wage protections. While its effective date was supposed to be Dec. 1, 2016, a federal judge blocked it nationally in Nov. 2016 after 21 states filed a lawsuit stating that the new regulations were unconstitutional. Trump’s choice for his Secretary of Labor, Andy Puzder, is the former CEO of CKE Restaurant Holdings, which is the parent company of Hardee’s and Carl’s Jr. Under his governance, the Labor Department is unlikely to implement the rule as it stands and may either substantially revise it or scrap it.

Predictive scheduling

Predictive scheduling is being considered in multiple states and cities. This would require employers to schedule most of the expected shifts and to post them publicly in advance. If employers ask workers to accommodate last-minute schedule changes, the employers would have to pay them extra compensation. A bill in New York about predictive scheduling would affect quick-service eateries, but it may later extend to other restaurants.

Tip pooling

Under the federal tip-pooling rule, restaurants are not allowed to make waitstaff share their tips with back-of-the-house employees. An appeal of a ruling out of the Ninth Circuit Court of Appeals that upheld the tip-pooling rule is currently pending before the Supreme Court of the United States. It is likely that the current administration will oppose the rule because restaurants enjoy economic advantages by letting their back-of-the-house employees participate in the tip pools.

Wage disparity and the pay gap

In recent years, wage disparity between the genders and races has become a hot-button issue. Studies have demonstrated that significant gaps exist between the wages of men and women in restaurants and between minorities and whites as well. Employees are allowed to file complaints about unfair pay within 180 days after their employers’ pay decisions under the Lilly Ledbetter Fair Pay Act. Beginning on Sept. 30, 2017, the Equal Employment Opportunity Commission has indicated that it will require employers that have more than 100 employees to submit compensation reports.

LGBTQ workplace rights

In 2016, LGTBQ rights surged to the forefront with the right to bathroom use becoming a part of the national debate. The Supreme Court granted certiorari to a case that involved a transgender student in Virginia named Gavin Grimm who wanted to use the men’s restrooms at his school. When the Trump administration revoked the guidance that had been established by the Obama administration, the Supreme Court returned the case to the lower court in March 2017. The 4th Circuit Court of Appeals will hear the case this fall. While the case does not directly involve employment law, it may potentially have an effect on how the EEOC and the federal courts view discrimination against LGBTQ people if it is determined that discrimination against them falls under the category of prohibited sex discrimination.

Employment laws are constantly changing. The experienced team at Swartz Swidler constantly work to stay current on the law. If you’d like to know more about the rights that you have, contact us today to schedule your consultation.