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.

Can I Sue My Employer for Unpaid Wages?

Can I Sue My Employer for Unpaid Wages?

Employers who fail to pay all of the wages that their employees have earned have committed a type of theft. There are state and federal labor laws that protect workers, entitling them to receive all of the wages that they are owed for the work that they perform. Workers who are able to prove that their employers have not paid them what they are owed may be able to sue their employers to recoup their pay. The employment lawyers at Swartz Swidler may be able to  help you recover the pay that you deserve.

Minimum wage

In Pennsylvania and under federal law, employers must pay their workers a minimum of $7.25 per hour in most cases. In New Jersey, employers must pay their workers a minimum of $8.44 per hour. Employers are also forbidden from taking deductions from their workers’ paychecks that reduce their pay to below the minimum wage, and employers in New Jersey and Pennsylvania are also forbidden from taking deductions that do not benefit the workers, including charges for uniforms or damages to equipment. In addition to taking disallowed deductions, some employers violate the state and federal wage and hour laws by failing to pay their workers for all of the hours that they have worked.

Failing to pay for the hours worked

There are several ways that employers fail to pay their workers for the hours that they have worked. In both New Jersey and Pennsylvania, employers must pay their workers for meal and rest breaks that the employees are forced to work through. They must also pay them for the time that they spend in required training and classes. Workers who have to travel as a part of their jobs must be paid for the time they spend traveling. If workers have to spend time waiting on the premises before or after their shifts, they must be paid for that time as well.

Failures to pay overtime

While not all workers are entitled to overtime pay, many are. Some employers fail to pay their workers the required overtime rate of 1.5 times their normal hourly wage for all hours that the employees work in a week over 40. Other employers try to skirt the overtime rules by misclassifying workers as exempt employees in order to avoid paying them overtime. Employees must be able to exercise discretion and judgment in their jobs and meet several other qualifications before they can be considered to be exempt employees from the overtime rules of Pennsylvania and New Jersey.

Contact Our Attorneys

If you believe that your employer has not paid you for all of the hours that you have worked, you should start by addressing the problem with your boss or the human resources department. If nothing is done, then you might want to schedule a consultation with the employment law attorneys at Swartz Swidler for help with recovering the money that you are owed.

What Everybody Ought To Know About Unpaid Wage Claims

What Everybody Ought To Know About Unpaid Wage Claims

If you believe that your employer has not paid you all that you have earned, you may have the basis to file a legal claim against your employer under state or federal law. Under federal law, the Fair Labor Standards Act mandates that you must be paid for every hour that you work, that you have the right to earn a minimum of the federal minimum wage, to limit the deductions from your paycheck and to receive all of your tips other than those that are paid into valid tip pools. In New Jersey, workers have the right to earn the higher state minimum wage of $8.44 per hour. Pennsylvania’s minimum wage is $7.25 per hour, which is the same as what is required by the FLSA. An employment law attorney at Swartz Swidler may help you to recover the compensation to which you are rightfully entitled by filing a claim for unpaid wages.

Violations of the minimum wage

You are entitled to receive at least the minimum wage. In Pennsylvania and federally, the minimum wage requirement is $7.25 per hour. New Jersey has a higher minimum wage rate of $8.44 per hour, meaning that workers in the state are entitled to receive the higher state minimum wage instead of the federal minimum wage.

Employers that pay the minimum wage but take deductions that make your pay less than the required minimum are in violation of the law. Some employers do this by not paying tipped employees enough. Under the FLSA, employers are allowed to pay tipped workers $2.13 per hour if the tips that the employee earns bring his or her pay up to the minimum wage amount. If the employee does not earn enough tips to make his or her pay equal to the minimum wage, the employer is in violation of the law if it doesn’t make up the difference. In New Jersey and under the FLSA, the minimum cash wage is $2.13 before tips. In Pennsylvania, it is $2.83 per hour.

Employers also sometimes take too much money from their workers’ paychecks in deductions. These deductions may include payment for debts that the employee owes to the employer or the costs of employment-related expenses. If they force the paycheck to fall below the minimum wage, the employer is in violation of the law.

Hours violations

Employers must pay their employees for all of the hours that they work. This may be violated when employers do the following:

  • Asking employees to work off the clock either before clocking in or after they have clocked out for the day
  • Making employees work through meal and rest breaks
  • Failing to pay for classing and training programs
  • Failing to pay for work-related travel time
  • Not paying workers for waiting time when the employee must remain on the premises
  • State laws about paydays and final paychecks

The federal FLSA does not have any requirements for employers to pay their workers within certain time periods or on certain days. In New Jersey, employers are required to pay their workers at least every two weeks. In Pennsylvania, employers are required to pay their workers a minimum of twice a month. In both states, employees must receive all of the compensation that is owed to them on their next regularly scheduled pay dates after they have left their jobs.

Vacation time

Employers in Pennsylvania and New Jersey are not required to offer their employees paid vacation time. Employers who do offer vacation time to their employees are required to cash out the accrued balances and pay their employees for it when they leave.

Tips and paycheck deductions

In Pennsylvania, employers are only allowed to make deductions from their employees’ paychecks that are for the benefit of the employee. This means that it is unlikely that employers would be allowed to deduct for tools that are required for the job, uniforms, damages to property and others. New Jersey specifically prohibits employers from taking deductions from employee paychecks for uniforms and uniform maintenance.

In both New Jersey and Pennsylvania, the tips that employees receive are generally considered to belong to them. Both states do allow employers to establish tip pools to which employees may be required to contribute reasonable amounts to be shared among a pool of employees. Employers may not require their workers to contribute unreasonable amounts or to pay enough of their tips into the pools that their wages fall below the minimum wage.

Contact Our Lawyers

If you believe that your employer has violated the federal or state wage laws, you should start by complaining to the company. You can talk to the human resources department about the issue and follow your company’s procedures for complaints. If the problem is not addressed, contact an attorney at Swartz Swidler about filing an unpaid wages claim.

When, How, And Why An Employer Can Fire An Employee

When, How, And Why An Employer Can Fire An Employee

At some point, most businesses must let some employees go. There are certain things that employers can and cannot do when they are terminating an employee. By understanding the employee termination process, you can better protect yourself if you are at risk of termination. The employment attorneys at Swartz Swidler might be able to help you if you are terminated illegally.

The primary types of termination

There are three primary ways that employers go about terminating an employee, including at-will termination, downsizing and for-cause termination. At-will termination involves a termination without cause. Most employees are at-will workers. in at-will termination states, employers may fire you for any reason at any time, and you may leave your job at any time and for any reason. There are certain prohibited reasons that employers may not base their termination decisions on, however. Employers are prohibited from firing workers based on their membership in certain protected classes.

If you are terminated for cause, this means that your employer has a reason to end your employment. This might including consistent tardiness or other problematic behaviors. People who have employee contracts may sometimes only be fired if their employers have grounds to fire them. Employers who use employee contracts must provide valid reasons for terminating an employee who is protected by a contract.

Downsizing includes layoffs and other similar situations that may lead an employer to terminate multiple employees in order to protect the business. When there is a downturn in the economy, businesses may go through multiple rounds of layoffs in order to reduce their costs.

What to expect during the employee termination process

Employers who fire employees must follow the guidelines they have established in their employee handbooks. If they do not have specific termination procedures outlined, the termination process may vary depending on what has happened.

You may receive a notice of termination from your employer. Sending these types of letters help businesses to protect themselves if your termination is later scrutinized. Most termination letters include a brief listing of the reason or reasons for the termination along with instructions for the return of property. Employers are not required to give written termination notices. You may instead be called into your boss’s office to talk about it. You can ask questions about the company’s reasoning or ask to have a third-party witness present.

Some businesses may have a manager or security officer escort a fired employee off of the business’s property. This type of policy is meant to protect the business and not as a reflection on your character. Your company may ask you to complete an exit interview at which you and your employer will be able to talk about the reasons for your termination.

The employment attorneys at Swartz Swidler advise you to take care when you are answering questions during an exit interview, whether it is oral or by questionnaire, about your feelings regarding your job and the termination. If you don’t want to answer a question, politely refuse.

Can employees be fired on the spot?

On-the-spot firings may happen immediately after an employee makes a mistake or engages in unacceptable behavior. They are not illegal unless they are contractually prohibited or are performed in a manner that violates your civil rights.

When is a termination wrongful?

When an employer fires you for a reason that is not legal, a wrongful termination has occurred. There are several types of wrongful termination:

  • Termination that is discriminatory

There are some classes that are protected under federal employment laws as well as the state laws of New Jersey and Pennsylvania. If your employer fired you because of your race, religion, disability, pregnancy status, gender, national origin or other protected class, you may have been wrongfully terminated. The attorneys at Swartz Swidler might help you to recover damages if you have been terminated based on an illegally discriminatory reason.

  • Retaliatory termination

If you are fired because you reported illegal activities or joined a union, your termination may be wrongful. Employers are prohibited from retaliating against employees who report illegal behavior to government agencies. Employees who do this are called whistleblowers, and there are a number of whistleblower protection laws that protect employees who do engage in whistleblowing. Employers may face substantial penalties when they retaliate against whistleblowers.

  • Termination in breach of contract

If a person is terminated in breach of an employment contract, it may be a wrongful termination. It is not as common as the other types of wrongful termination, however. If you have a contract, you will want to make certain that you understand it to know what your rights under it are. If you believe that you may have been the victim of a wrongful termination, schedule an appointment with the attorneys at Swartz Swidler today.

How Old Is Legally Old? Workplace Age Discrimination Guide

How Old Is Legally Old- Workplace Age Discrimination Guide

Employers may not discriminate against employees or applicants on the basis of age, including in decisions about hiring, promotions, termination, layoffs or discipline. However, this prohibition only applies to workers who are ages 40 or older. The federal Age Discrimination in Employment Act of 1967 likewise only applies to employers who have 20 or more employees.

Under the New Jersey Law Against Discrimination, employers of any size are prohibited from discriminating against employees on the basis of age, and there is no minimum age threshold. In practice, however, people are likelier to be successful with age discrimination claims under the act if they are older workers who are replaced by workers who are substantially younger than them. If you need help, contact an attorney with Swartz Swidler to learn more about your claim.

Protections under the ADEA against age discrimination in the workplace

The protections under the ADEA apply to apprenticeship programs. They are not allowed to restrict applicants who are older than age 39 from participating in them. Age may only be used if it is a bona fide qualification for the job. Age discrimination is also prohibited in job advertisements. For example, employers may not list age preferences or limitations as job qualifications. If an employer asks for an applicant’s age before the applicant is hired, it may be viewed as evidence of age discrimination. Older workers must also be offered the same types of benefits as younger workers. However, since some benefits cost more for older workers, employers may reduce the benefits to an amount that is the same as the cost of the benefits for younger workers. Employers may offer departing workers additional severance pay in exchange for an agreement to not bring a legal claim against the company. These waivers must comply with certain legal requirements or they will not be considered valid.

The waivers must be in writing, be understandable, refer to ADEA rights specifically, not attempt to waive future claims and be made in exchange for valuable consideration. The worker must also be given at least 21 days to consider the waiver and at least seven days to revoke it after it has been signed.

To learn more about your rights under state and federal law concerning age discrimination in the workplace, it is important for you to seek the advice of experienced employment law attorneys. Contact the lawyers at Swartz Swidler to schedule your consultation today and to learn more about your own case.

Common Violations Of Overtime Laws

Common Violations Of Overtime Laws

A majority of U.S. employers are required to pay their eligible employees who work in excess of 40 hours per week overtime pay. When this law was passed during the Great Depression, it was meant to help more people get employment by encouraging employers to hire more workers. Today, overtime pay is treated as a right in recognition that people who work more than 40 hours in a week should be paid extra. Some employers attempt to avoid paying their workers the overtime that they deserve. They do so by misclassifying employees, miscalculating pay and using creative timekeeping.

Overtime rules

The Fair Labor Standards Act is a federal law that governs wage and hour concerns. Under the law, employers who are covered by it must pay their employees time and one-half of their normal hourly rates for each hour worked beyond 40 in a standard work week. While most employers are covered by the FLSA, not all of their employees are entitled to overtime.

Exempt employees

Some workers are exempt from the overtime pay requirement. They fall under one of the exceptions to the FLSA overtime rules and include farmworkers on small farms, outside salespeople, seamen and newspaper deliverers, among others. The majority of the disputes about overtime pay result from white-collar exemptions in the law as employers apply them to administrative, professional and executive employees. If workers in this category earn a minimum of $455 per week and have jobs that require advanced degrees, are supervisory roles or involves making high-level decisions requiring their discretion, they may be salaried and ineligible for overtime pay.

State Overtime Laws

Both New Jersey and Pennsylvania have their own overtime laws which closely mirror the FLSA. Workers are entitled to the rights that are given to them under the most protective law whether it is the federal FLSA or the state’s rule. Your attorney at Swartz Swidler can determine which law should apply in your case if you have not been paid overtime to which you are entitled.

Common violations of overtime laws

There are several common violations of overtime laws, including employee misclassification, failing to count all of the hours that have been worked and miscalculating the workers’ hourly rates. Some employers misclassify workers as exempt employees even though their job duties are no different from those of the employees who report to them. Employees are also misclassified as exempt when their positions do not require independent judgment and discretion. Some workers are paid based on the number of hours that they work in a week rather than being paid a salary that doesn’t fluctuate. Finally, some workers are paid salaries of less than $455 per week, making them nonexempt.

Even in cases when an employee is correctly classified as nonexempt, employers may still violate the law by not counting all of the hours that were worked. This includes requiring workers to work off the clock, to work through unpaid breaks, to take work to perform at home that they are not paid for, to not pay workers for the time it takes them to put on or take off safety clothing and gear at the job site or to fail to count time spent on job-related travel.

Employers also sometimes make mistakes with calculating the person’s hourly rate. Some do not include all of the compensation in determining the wage by failing to count all wages, commissions and shift pay differentials or failing to count performance-based prizes and bonuses.

Contact Our Overtime Attorneys

If your employer has not paid you overtime pay that you believe you should have received, you should start by discussing it with your employer. When you do, tell them why you think that you are entitled to overtime pay for the hours that you have worked in excess of 40 during a work week. If your employer refuses to pay you overtime, you can choose to make a wage claim through the state’s administrative agency or to file a lawsuit in court. An attorney at Swartz Swidler may advise you about whether or not it appears that you have a valid claim. He or she may then help you to recover any overtime to which you should be entitled.


Get The Facts About Sexual Harassment

Get The Facts About Sexual Harassment

Sexual harassment is an ongoing problem for both men and women in New Jersey and Pennsylvania. It is recognized as a form of sex discrimination under the Title VII of the federal Civil Rights Act of 1964, the New Jersey Law Against Discrimination and the Pennsylvania Human Relations Act. Across the U.S., sexually harassing people at work, in housing decisions or in educational institutions is against the law. If you have been sexually harassed, an attorney at Swartz Swidler may be able to help you.

Facts about sexual harassment and statistics about sexual harassment and assaults

Sexual harassment may include a variety of unwanted behaviors. Here are some facts about sexual harassment and what it may include:

  • Catcalls and wolf whistles
  • Leering
  • Sexual inuendos
  • Unwanted touching of a sexual nature
  • Pressure for dates or sexual favors
  • Graphic descriptions of pornography
  • Lewd, threatening letters, texts or emails
  • Grabbing genitals or breasts
  • Displaying porn in the workplace
  • Indecent exposures
  • Sexual assaults

The most severe form of sexual harassment, a sexual assault is especially troubling. A common misconception about sexual harassment and assault is that only women are victims. While statistics about sexual harassment demonstrate that nine out of 10 victims of sexual assaults are women, 2.78 million men have been the victims of rape or sexual assaults in their lifetimes as well. Only 39 percent of sexual assaults are reported to police, and of those, only 16.3 percent of the rapists will spend any time in prison. When civil lawsuits are filed, the burdens of proof are lower than what is required of the prosecutors to prove in corollary criminal cases, meaning that sexual harassment civil lawsuits may provide recourse even when remedies may not be had in any corresponding criminal cases against the perpetrators.

Sexual harassment in the workplace

When a person is sexually harassed while working on the job, the act is prohibited under federal and state law. Common forms of prohibited workplace sexual harassment include the following:

  • Direct, unwanted sexual advantages
  • Offering promotions based on sexual favors
  • Threatening negative job actions unless the victim performs sexually
  • Sexual joking, remarks and putdowns to the point that the workplace is a hostile environment
  • Intimidating employees based on their sex, sexual orientation or sexual identity in order to jeopardize their employment statuses

The National Council for Research on Women reports that women have a nine times higher likelihood of quitting their jobs because of sexual harassment and are three more times likelier to lose their jobs because of it. Women are especially likely to encounter workplace sexual harassment when they are employed in traditionally male occupations, such as the military, police work or construction. Sexual harassment victims are able to file claims even if he or she has given into the sexual demands because he or she is afraid of being fired or of retaliation.

Employer liability

In Pennsylvania and in New Jersey, employers are responsible for taking steps to prevent sexual harassment and correcting it if it occurs. They also must protect their workers from harassment by certain third parties such as customers, suppliers and vendors. If an employer knows that sexual harassment is occurring between coworkers and took no action to stop it, they may be liable to the victim. In addition to having a sexual harassment grievance procedure in place, an employer has a duty to investigate complaints and stop the harassment when they learn it is happening.

All employees should receive copies of a company’s sexual harassment policy. It should provide clear steps for reporting and encourage witnesses and victims to speak up. It should also clearly state that retaliation for reporting sexual harassment will not be tolerated.

Stopping sexual harassment

The first step that a victim of workplace sexual harassment should take is to confront the harasser and tell them it is inappropriate and unwanted. In some cases, a person may not realize that his or her conduct is inappropriate, and speaking up may be enough. If that does not work, the victim should next file a formal internal complaint according to his or her company’s grievance procedure. If there is no such policy in place, he or she should report the conduct to his or her manager in writing. If the manager is the offender, then the victim should report the conduct to the manager’s boss.

Documenting harassment

It is very important to thoroughly document all incidents of harassment, including the dates, times, what occurred and the names of witnesses and the perpetrator. If a harasser sends text messages, letters or emails, copies should be kept for use as evidence if a complaint or charge may later be filed. People should also keep copies of their written internal complaints as well as any corrective action or retaliatory action their employers may take in response.

Legal remedies

If your company’s internal complaint procedure results in no action, it is important for you to consult with an experienced employment lawyer at the law firm of Swartz Swidler. Attorneys may help you with filing your charge with the Equal Employment Opportunity Commission, the Pennsylvania Human Rights Commission or the New Jersey Division on Civil Rights. You must file a discrimination charge with your federal or state agency before you can file a formal lawsuit in court. It is important for you to act quickly because you may have as little as 180 days to file a charge after the harassment or retaliation has occurred.

When you file a charge with the EEOC or the corresponding state agency, it will investigate your claim. If the agency decides to pursue it, it may then pursue remedies on your behalf such as trying to settle the claim for you with your employer. The agency may also issue you a right-to-sue letter if it chooses not to take your case, allowing you to file a lawsuit in state or federal court against your employer. If the agency’s investigation instead finds that you have not been harassed, you are allowed to appeal the finding. The investigation by the EEOC may take more than a year. You are allowed to skip it by requesting that it issues you a right-to-sue letter, but you must file a charge of discrimination with the agency before you can proceed with your lawsuit.

Civil and criminal remedies

Civil sexual harassment cases may offer a variety of damages, including the following:

  • Reinstatement
  • Lost wages and benefits
  • Future lost earnings if the victim does not choose reinstatement
  • Attorney’s fees and court costs
  • Injunctive relief
  • Compensatory and punitive damages

Civil cases against the harasser and the company may proceed at the same time as any criminal actions when the conduct crossed the line into criminality. Since the burden of proof is easier to meet in civil cases than in criminal ones, you may be likelier to hold the abuser accountable in civil cases than in criminal proceedings even if he or she has his or her criminal case dismissed or is found not guilty after a trial.

Sexual harassment in educational settings

Sexual harassment is also prohibited at schools under Title IX of the 1972 Education Act. It applies to colleges, universities and schools that receive any federal funding and allows the U.S. Department of Education to investigate and prosecute complaints. Under the act, people in positions of authority, including teachers, administrators and others, are prohibited from sexually harassing students.

What to do if you are harassed at school

If you are harassed at school, report it to the principal or the vice-principal, if possible. Students in universities should review their student handbooks and follow the grievance procedures provided by them. If it does not help, you should report the sexual harassment to the U.S. Department of Education’s Office of Civil Rights. An attorney may help you with filing your complaint. Criminal conduct should also be reported to the police.

If you have experienced sexual harassment at your job or at your school, it is possible for you to seek remedies. An attorney at Swartz Swidler may review what has happened and advise you about whether you have a strong case. Contact our office today to schedule a consultation.