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A recent lawsuit filed by a law enforcement employee who failed to disclose his expunged convictions does not prohibit him from pursuing a workplace discrimination complaint against his employer for workplace harassment but the evidence of the convictions could be used to limit or potentially reduce economic damages.   In a widely anticipated decision by the New Jersey Supreme Court, the Court has ruled that even intentional withholdings of information by perspective employees which are later discovered by the employee is not a defense available to the employer if the employee is able to establish workplace violations actionable under the Law Against Discrimination (LAD).    The Court did rule however, that the evidence of the withheld information prior to employment could (if relevant and material to the outcome to the issues in dispute) serve as a basis for the employer to totally or partially avoid economic damages depending on the particular facts of the case.   This decision clarifies earlier court decisions relating to the employers bringing actions against employees knowing that they had previously failed to disclose otherwise material and important information about their private life.   

For more information on this decision, contact Lauren Bercik, Esq. at lbercik@hnlawfirm.com

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Title VII of the Civil Rights Act of 1964 protects employees and job applicants against discrimination on the basis of sex (including pregnancy), race, color, national origin or religion.  Title VII also prohibits employment decisions based on stereotypes and assumptions about abilities, traits, or the performance of individuals on the basis of prohibited characteristics.  Title VII covers employers with 15 or more employees, including state and local governments.  To learn more about the types of discrimination prohibited by Title VII, visit the Equal Employment Opportunity Commission here.

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The ADEA protects people 40 years of age or older from discrimination in the workplace or when applying for jobs.  The ADEA further protects workers from retaliation for openly opposing discriminatory practices based on age or from cooperating with or participating in litigation under the ADEA.  The ADEA covers employers with 20 or more employees, including state and local governments. To learn more about your rights under this federal statute, check out the EEOC’s ADEA page.

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The ADA prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. The ADA covers employers with 15 or more employees. To learn more about what constitutes a disability and what accommodations employers are required to provide to workers with disabilities, check out the Equal Employment Opportunity Commission’s ADA page here.  To get an idea of the full scope of ADA protections beyond the employment context, visit the ADA information page here.

Millions spend golden years making green

Cecil Lawrence’s friends tease him that he’s crazy to work at his age. The 90-year-old glass salesman just laughs and suggests that they’re even crazier to sit at home and watch soap operas. “I guess they’re content to be old folks,” he said.

Like Mr. Lawrence, about 2.7 million Americans are skipping retirement and working into their 70s, 80s and even 90s.  Most remain on the job, retirement experts say, not for the money but for the personal satisfaction.  The lifelong workers still account for only 10 percent of their generation, but the proportion of over-70 Americans who have “retired retirement” has edged up since the 1990s as people live longer, enjoy better health and hold less physically demanding jobs.  And the number will only increase with the baby boomers. Seventeen percent say they expect to work indefinitely, though financial necessity will be a bigger reason for their passing up Golden Pond, according to the MetLife Mature Market Institute.

Policy analysts who fear an “entitlement crisis” with the retirement of 78 million boomers welcome the trend toward longer working lives, saying it offers financial benefits for older individuals and the economy as a whole.

Postponing retirement by just five years would boost the average worker’s annual retirement income by 56 percent and add $1 trillion a year to tax coffers by 2045, enough to erase Social Security’s deficit, says the Urban Institute’s Retirement Policy Center.

Older workers bear the burden of convincing businesses that they can remain productive, said William Zinke, a human resources executive who’s created a nonprofit group, the Center for Productive Longevity, to change employer attitudes.

“Although age discrimination is illegal, it exists far more than we’d like to think,” he said.  Many employers view older workers as particularly expensive, either because they demand higher salaries or incur more health care costs than younger workers, said Gordon Mermin, a policy analyst with the Urban Institute.  But by the time workers reach their 70s, many aren’t looking for traditional health benefits, because they’re covered by Medicare.

Only 15 percent have employer-provided health insurance, and 14 percent have pension coverage, the institute says. Only 27 percent work full-time, while 38 percent put in fewer than 20 hours a week.

Many businesses also worry that older workers are harder to train and will retire too soon for the investment in them to pay off. But older employees’ loyalty, sound judgment and even temperament can make them good role models for younger workers, Mr. Mermin said.

“The key is an understanding employer who’s willing to make some accommodations,” said Cynthia Metzler, president and chief executive of Experience Works, a national group that provides training and employment services to older workers.

Tax, pension and age anti-discrimination laws have discouraged employers from establishing formal “phased retirement” programs that allow workers to reduce their hours but stay on the payroll, Mr. Zinke said. But some employers do it informally. And plenty of older workers don’t need a boss’s approval. Among workers 70 and older, 42 percent are in business for themselves, the Urban Institute says.

KNOW THE TAX LAWS BEFORE YOU WORK

Some seniors complain that income tax laws discourage them from working.  Once you’re past your full retirement age, you won’t lose any of your Social Security benefits just because you’re working.  But a portion of your Social Security benefits may become taxable.

To determine whether you owe any federal income taxes on your benefits, the Internal Revenue Service looks at your “combined income.” That consists of your adjusted gross income (including wages from your job, pension payments and withdrawals from a 401(k) or IRA), any nontaxable interest income, plus half of your Social Security benefits.  If this combined income is between $25,000 and $34,000 (or between $32,000 and $44,000 for a couple filing jointly), you may have to pay income taxes on 50 percent of your Social Security benefits. That doesn’t mean you’ll pay half of your benefits in taxes. What it does mean is that 50 percent of your Social Security benefits must be added as income when filing your tax form.
 
If your combined income exceeds $34,000 (or $44,000 for a couple filing jointly), you may owe income taxes on up to 85 percent of your Social Security benefits. A tax adviser may be able to help you avoid this maddening situation: Say that on Dec. 31, the final dollar of annual income you earn from your job triggers taxes on your Social Security benefits.  That last dollar not only would be taxed as income, it also would prompt the taxation of a lot more income.

No matter how much you enjoy working in your golden years, you may wish you had stayed home that day.

There are numerous federal and state laws that protect “whistleblowers” who report unfair or illegal practices of their employers, of which New Jersey’s CEPA law is just one.  CEPA provides that employers may not retaliate against workers who disclose (or threaten to disclose) practices of the employer that they believe are violations of the law.  CEPA also protects employees who refuse to participate in unlawful or fraudulent activities or those that may harm the health, safety or welfare of the public.  Employees must be careful in asserting their rights under CEPA, as certain steps are necessary to ensure protection under the law.  If your employer asks you to do an act you feel is illegal or against public policy, it is important to contact an attorney as soon as possible.

Title VII of the Civil Rights Act of 1964 protects employees and job applicants against discrimination on the basis of sex (including pregnancy), race, color, national origin or religion.  Title VII also prohibits employment decisions based on stereotypes and assumptions about abilities, traits, or the performance of individuals on the basis of prohibited characteristics.  Title VII covers employers with 15 or more employees, including state and local governments.  To learn more about the types of discrimination prohibited by Title VII, visit the Equal Employment Opportunity Commission here.

The FLSA requires that employers pay employees a certain minimum wage and pay certain “non-exempt” employees overtime at the rate of one-and-one-half-times their regular rate of pay.  Employers regularly violate this rule by classifying employees who should be non-exempt as exempt to avoid paying them overtime wages.  Other employers violate the FLSA when they offer employees “comp time” instead of paying the required overtime.  To learn more about employee rights and employer obligations under the FLSA, visit the Department of Labor’s page on the topic here.  Also keep in mind that many states have minimum wages laws higher than the federal minimum.  For instance, while the federal minimum wage is currently $5.15 per hour, New Jersey and New York require employers to pay $7.15 per hour.  If you are not being paid the minimum wage or work more than 40 hours per week without receiving overtime pay, you should contact an attorney to discuss your rights.  Click here to contact me.

The ADA prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. The ADA covers employers with 15 or more employees. To learn more about what constitutes a disability and what accommodations employers are required to provide to workers with disabilities, check out the Equal Employment Opportunity Commission’s ADA page here.  To get an idea of the full scope of ADA protections beyond the employment context, visit the ADA information page here.

There are numerous federal, state and local laws and regulations that protect employees from unfair and discriminatory practices in the workplace.  Some of them are listed in this section.  Please note that there are many other laws and state common law doctrines that may be relevant to your situation.  To discuss your individual situation and the claims you might have, please contact me.