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.

What Can The Family Medical Leave Act Be Used For?

What Can The Family Medical Leave Act Be Used For?

The Family and Medical Leave Act is a federal law that applies to employers that have 50 or more employees working within a 75-mile radius. This law mandates that covered employers allow their employees to take up to 12 weeks of unpaid leave from work each year to care for their own medical conditions or the serious medical conditions of their family members. If your rights under the FMLA have been violated, the experienced employment attorneys at Swartz Swidler might be able to help you.

FMLA guidelines

In order to have rights under the FMLA, you must work for a private employer that has 50 or more employees. You must have also worked at least 1,250 hours for the employer during the past 12 months, and your employment must have lasted for at least 12 months. Covered workers may take up to 12 weeks of leave during any 12-month period for their own serious health conditions or to care for family members with serious health conditions. The FMLA also offers special rules for military family leave because of deployments, and you may take up to 26 weeks of leave to care for an injured service member who has returned from deployment. You may also take FMLA leave for childbirth, maternity leave or to welcome a new child into your family through adoption or foster care.

If you take approved leave under the FMLA, your employer must continue your health insurance while you are gone. When your leave is over, you will be able to return to your same job or to a similar position at the same rate of pay. While FMLA leave is unpaid, you are allowed to use up any accrued vacation or sick time during it.

How to apply for FMLA leave

You are required to give your employer reasonable notice that you will need to take FMLA leave. If you know that you will need to do so, you must provide 30 days notice. If you do not know that you will need to take the leave 30 days before it, you must give your employer notice as soon as you learn about it. You must give your employer as much information as is needed so that the employer understands that it may be covered by the FMLA.

FMLA eligibility

Eligibility for FMLA is only for certain employees who meet the requirements, including the following:

  • The employer has at least 50 employees who work within 75 miles.
  • The employee has worked for the covered employer for at least 12 months.
  • The employee has worked a minimum of 1,250 hours during the last 12 months.
  • The employee or his or her family member has a serious medical condition, is adding a new child to the family or needs to take leave to care for a military service member.

To learn more about your rights under the FMLA, contact the employment law attorneys at Swartz Swidler.

Establishing a Prima Facie Case of Discrimination Under Title VII

Establishing a Prima Facie Case of Discrimination Under Title VII

In Latin, prima facie means at first glance. When a litigant is in court, he or she can make a prima facie case by submitting evidence that would be enough to support his or her allegations if they were believed by the jury or judge. When a worker sues his or her employer for discrimination under Title VII of the Civil Rights Act of 1964, the worker must have enough evidence for a prima facie case of discrimination. If the worker meets that initial burden, the burden of proof shifts to the employer, who must present evidence that there was a nondiscriminatory reason for the disputed employment decision. The worker will then be able to challenge the evidence offered by the employer by showing that the employer’s reasons were pretextual.

Title VII

Under Title VII of the Civil Rights Act of 1964, employers are prohibited from discriminating against members of the Title VII protected classes. This includes discrimination on the basis of sex, religion, color, race or national origin. Employers are likewise prohibited from retaliating against workers who have participated in an investigation or exercised their rights to file discrimination complaints.

What is a prima facie case of discrimination?

Workers establish a prima facie case by meeting the elements of a test that has been established by the courts. If the workers cannot meet these elements, the employers can request dismissals of the lawsuits. The employee must show all of the following:

  • The worker is a member of a protected class
  • The worker has the qualifications for the job.
  • The worker was denied the job.
  • The employer either filled the job with a worker who is not a member of a protected class or kept the position open without filling it.

What the employer must show

After a worker has established a prima facie case, the burden shifts to the employer. The employer must submit evidence showing that the decision was made because of a nondiscriminatory and legitimate reason. For instance, in a case involving an employee who claims that she was fired because she is a woman, an employer might present evidence that the woman was fired because of her poor job performance.

Rebutting the employer’s reason with pretext

After the employer has presented its evidence, the worker will then be able to rebut it by showing that the reason was actually pretextual and that the employer’s real motive was discrimination. The employee might present evidence that rebuts the employer’s reason in order to demonstrate that it indicates discrimination.

The employee ultimately has the burden of proving his or her own discrimination claim. The worker must have enough evidence to convince a jury or judge that discrimination occurred. The employer only has the burden of proving that there is some evidence supporting a legitimate purpose.

Contact an experienced employment law attorney

If you feel that your employer illegally discriminated against you, getting legal help from an experienced employment law attorney might be beneficial. An attorney at Swartz Swidler can offer you an honest assessment of your claim and how you might proceed. Contact Swartz Swidler today to schedule your consultation.

Learn The Laws For Tipped Employees In New Jersey

Learn The Laws For Tipped Employees In New Jersey

If you are one of the numerous employees in New Jersey who receive tips, it is important for you to understand the laws that apply to tipped employees. There are wage and hour laws that apply specifically to tipped employees, giving you some protection. If you believe that your employer has violated the laws for tipped employees, the experienced employment law attorneys at Swartz Swidler might be able to help you to recover the money that you are owed.

Understanding the basics

Under both federal and state law, tips belong to you rather than to your employer. Your employer is not allowed to ask you to give your tips to the employer unless an exception applies as follows:

  • Counting the tips towards the employer’s minimum wage requirements as a tip credit
  • A valid tip pool is in place in which your tips are shared with other employees

Under the federal law, the minimum wage is $7.25 per hour, but under New Jersey law, the minimum wage is $8.44 per hour. As a New Jersey worker, you have the right to earn the higher state minimum wage. In many states, employers are allowed to pay tipped employees less than the minimum wage as long as the employees are able to make up the difference in tips. This is called a tip credit. In New Jersey, your combined wages and tips must together add up to at least $8.44 per hour, and the tip wage rate may be set by your employer. For tipped employees doing non-tipped work, the rules are different. If your job requires you to spend part of your shift doing non-tipped work and spend more than 20 percent of your time doing the non-tipped activities, your employer must pay you the full minimum wage and cannot take a tip credit for those hours when you are not receiving tips.

Tip pools

Tip pooling laws govern tip sharing in restaurants and elsewhere. Tipped employees may take part in a tip pool in which only the tipped employees may participate. They must be notified of the tip pool, and they may not have to share more than what is reasonable. The tips in the pool must be divided among the participating employees only, and the employer is not allowed to take a cut.

What counts as a tip?

When tipping is voluntary, whatever amount customers leave above the charge for the services or products plus tax are tips. However, if employers impose mandatory service charges or the customers use credit cards to pay, the rules might change.

Mandatory service charges

It is common for restaurants to add mandatory service charges on the bills for private parties, catered events or large tables. These charges are not considered to be tips even if the customers believe that you will receive them although your employer may choose to give you a portion if he or she wishes.

Credit card charges

While New Jersey law does not address payments by credit cards, some states allow employers to take a portion of their employees’ tips that is proportionate to the amount of the credit card charges that they pay. For example, if your employer has to pay 3 percent to accept the credit card payment, your tip for that service may also be reduced by 3 percent.

Contact Our Attorneys

If you are a tipped employee who believes that your employer is not paying you what you should receive, you might want to consult with the experienced employment law attorneys at Swartz Swidler. Call us today to schedule your appointment and to learn more about tipped employees rights.

5 Things You Need To Know About Employment Class Action Lawsuits

5 Things You Need To Know About Employment Class Action Lawsuits

Employment class actions involve massive cases that sometimes involve damages that range into the millions of dollars for violating employers. A class action results when multiple employees endure the same workplace discrimination or other employment law violation and join together in a single large case against the employer. Class action lawsuits can help the victims to receive justice while also deterring future violations by the employer as well as others.

What is an employment class action lawsuit?

An employment class action lawsuit is a single lawsuit on behalf of numerous plaintiffs who have identical claims against a single employer. Damages are sought in a single action for the entire group instead of for individual employees in separate lawsuits. For example, if your employer is refusing to pay you overtime, it is likely that other workers are also owed overtime, potentially giving the grounds for a court to certify a class action case.

Requirements for class action lawsuit

In order to file a class action lawsuit, it is important for you to understand what constitutes a class action lawsuit. The legal claim must be one that isn’t unique to one individual but instead negatively impacts an entire group of individuals. The number of individuals that have the grounds to file lawsuits is so great that it would be impractical to fill up a courthouse with multiple identical cases against the same employer. When these factors arise, your lawyer at Swartz Swidler may file a motion with the court asking that your case is certified as a class action lawsuit.

How many people are needed for a class action lawsuit?

Technically, there is no minimum number of people required to qualify for a class action lawsuit. However, getting fewer than 40 people certified to participate may make the process an uphill battle. Although smaller class action lawsuits are sometimes approved, they are rarer than large classes involving hundreds or thousands of employees.

How is an employment class action different than an individual employment case?

An individual employment case deals with the legal claims of a single employee. An employment class action becomes relevant when large groups are all facing the same difficulties.

What are the requirements of an employment class action lawsuit?

First, the disputed issue isn’t one that negatively impacts just one individual or a few people but instead impacts an entire group of individuals. Second, the number of individuals negatively impacted are so great, it would be impractical to try all of the cases separately.

What are the various stages of a class action case?

After the case is filed, the lawyer will then have it served on the defendant and will wait for a response. The defendant will file a response and may also file a motion asking the court to dismiss the lawsuit. After the court makes the decision about whether or not the case will be allowed to proceed, both sides will enter into the discovery phase. The attorney may then file a motion with the court asking that it certifies the case as a class action lawsuit. The defendant will then have the opportunity to respond by filing opposing briefs challenging the validity of the case. The judge weighs all evidence presented and renders a judgment on whether this certification will be granted or denied. If granted, the case will continue with a class-action status.

The employment class action lawyers at Swartz Swidler are highly trained to handle class action lawsuits. If you are in the New Jersey or Pennsylvania area and feel you have a potential class action suit, please call Swartz Swidler today and schedule an appointment. We may be able to help you.

What Age Discrimination Damages Can I Collect?

What Age Discrimination Damages Can I Collect?

If you are successful with your age discrimination claim, the amount of compensation you might expect to receive will depend on the losses that you have incurred as a result of the discrimination. Your available damages may include your lost pay, attorney’s fees, liquidated damages and emotional distress. If you sue under state law in New Jersey, you may also be able to recover punitive damages, but they are not allowed under federal law. Your age discrimination lawyer at Swartz Swidler may advise you on the types of damages that might be available to you in your particular case.

Age discrimination laws

Age discrimination is prohibited federally as well as under the anti-discrimination laws of New Jersey and Pennsylvania. The availability of damages differs depending on whether you sue under the federal Age Discrimination in Employment Act, the New Jersey Law Against Discrimination or the Pennsylvania Human Relations Act.

Age Discrimination in Employment Act

Under the Age Discrimination in Employment Act, employers that have 20 or more employees are prohibited from discriminating against workers who are 40 years old or older. Covered employees are not allowed to discriminate in any aspect of employment from hiring to firing. Some workplace policies that do not overtly appear discriminatory may be deemed to constitute age discrimination if they have a disparate impact on older employees.

New Jersey and Pennsylvania age discrimination laws

New Jersey and Pennsylvania each have their own state laws that prohibit work-related age discrimination. New Jersey’s Law Against Discrimination allows employees to recover punitive damages to punish their employers. It also applies to workers of all ages, meaning it is possible for people who are under age 40 but who are discriminated against because of their ages to file claims. Like the federal law, the Pennsylvania Human Relations Act covers workers who are 40 or older, however.

Potential damages

There are several types of damages that may be available to workers who are successful in their age discrimination claims, but they differ depending on whether you sue under state or federal law. Under both federal and state law in Pennsylvania and New Jersey, you are able to recover the pay that you lost because of the age discrimination against you. If you are able to prove that you were laid off because of your age, you will be able to recover back pay up until your trial as well as the front pay that you will continue to lose. You may also be able to recover the value of any fringe benefits that you lost or any that you would have received if you had not been discriminated against.

You cannot recover damages for emotional distress under the ADEA, but damages for emotional pain and suffering are recoverable under the state anti-discrimination laws of New Jersey and Pennsylvania. To prove that you suffered emotional distress, you may need to have an expert evaluate you and then testify about your injuries at trial. It will be up to the jury to determine what amount to award you for the emotional distress that you suffered.

Punitive damages are not available under the ADEA or in Pennsylvania, but they may be available to you if you sue in New Jersey under the Law Against Discrimination. Your attorney at Swartz Swidler may advise you about the most appropriate jurisdiction for your claim. You may also be able to recover your attorney’s fees under federal and state law. To learn more about your rights and the damages that may be available to you, schedule an appointment with the experienced employment lawyers at Swartz Swidler.

Does the ADA Cover Psychiatric Disabilities?

Does the ADA Cover Psychiatric Disabilities-

According to the National Institute of Mental Health, as many as one-fifth of people in the U.S. will suffer from a psychiatric disability at some point during their lives. The prevalence of mental health issues means that it is important for employers to address the needs of workers who are suffering from mental health issues. The Americans with Disabilities Act and the laws of both New Jersey and Pennsylvania forbid discriminating against people who are disabled, including those who are disabled by psychiatric conditions. Employers may also be required to provide reasonable accommodations to employees who are suffering from mental illnesses. Employees who have these conditions may also not be treated differently because of their illnesses. If you believe that you have been discriminated against because of your condition, the experienced employment law attorneys at Swartz Swidler may be able to help.

Who is covered under the ADA?

Job applicants and workers must be otherwise qualified for the position in order to qualify for protection under the ADA. This means that the workers or applicants must have the education, experience and skills that are required for the job as well as the ability to perform its essential functions. People who are disabled to such a degree that they could not perform the essential functions even with reasonable accommodations are not qualified, and the employer may then refuse to hire or decide to terminate them.

Workers who are suffering from psychiatric conditions that substantially limit them in their ability to perform major life activities may qualify as having a disability that is protected by the ADA. The following situations may all qualify:

  • A record exists of the disabling condition.
  • The employer believes that an employee has a mental condition even if he or she does not.
  • The employee doesn’t have a condition but is discriminated against based on his or her relationship with someone who does.
  • An employee with a psychiatric condition requests reasonable accommodations and is retaliated against by the employer.

A condition may be substantially limiting if it makes activities more time-consuming, uncomfortable or more difficult. Intermittent symptoms do not disqualify the condition. The key issue is how the symptoms limit the worker when they are present.

Reasonable accommodations

Disabled workers may be entitled to receive reasonable accommodations if they are needed to help him or her to perform a task that is required by the job. These might include the following:

  • Schedule changes or reassignments
  • Allowing people to take medicine at work
  • Changes to communication or management styles
  • Relocating employees to less distracting areas

The employer’s duty to provide reasonable accommodations is triggered when the employer first learns about the condition and the employee’s need for accommodations. Normally, disabled employees must notify their employers about their conditions and request accommodations. In practice, many disabled employees don’t ask for accommodations or disclose their conditions out of fear of losing their jobs or their privacy. Employers should keep the information separate from the disabled employee’s personnel file and keep the information on a need-to-know basis. When employees fail to ask for accommodations, employers generally have no obligation to offer them. It is thus important for you to ask for accommodations if you feel that you need them.

Employers must provide reasonable accommodations to workers who are suffering from disabilities unless the accommodations would result in an undue hardship. An undue hardship is one that would cause a substantial expense or another difficulty, and determining whether or not a requested accommodation is unreasonable should be made on a case-by-case basis.

The ADA prohibits workplace discrimination against people who are suffering from psychiatric conditions in all aspects of employment. Employers are not allowed to treat people unfavorably simply because they are suffering from a mental health condition.

Contact Our Attorneys

If you have a mental health condition that is disabling, you may be protected under the ADA as well as the state laws of New Jersey and Pennsylvania. Whether or not your disability qualifies will depend on what happened and how your condition limits you. To learn more about the rights that you might have if you believe that you have been discriminated against, contact the attorneys at Swartz Swidler.