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Damages Available Under Law Against Discrimination and Wage and Hour Law for Uncompensated Overtime Required of Handicapped Employee


The Employment and Labor Law Alert

January 8, 2003

Although the New Jersey Law Against Discrimination (“LAD”) generally preempts all common law causes of action which arise from the same nucleus of operative facts as the statutory claim, that same preemption does not apply to other statutory claims. In Mosley v. Femina Fashions, Inc., 2002 N.J. Super. LEXIS 469, ____ N.J. Super. _____ (App. Div. 2002), the Appellate Division concluded that the same facts could support both an LAD claim, and a Wage and Hour Law claim. The Court also concluded that imprecise Wage and Hour damages could be fashioned, such that incomplete records are not a bar to damages.

Plaintiff, who is unable to hear or speak, was a seamstress at Defendant company. She alleged that, although she was an hourly employee, she was required to work overtime without compensation. Specifically, Plaintiff noted, her supervisor would instruct her to stay and work until she met a certain level of productivity, but would not allow her to punch her time card at the time she left, instead marking her time cards well before her actual departure time. Although Plaintiff complained about working without pay, her concerns were not addressed. She left employment after an incident in which she was required to work three hours longer than her time card reflected, and was told, after complaining, to “get out.” During her employment, Plaintiff did not report her employer’s failure to pay overtime to a governmental agency because she feared retaliation, including job loss, noting “it’s hard for me to find a job.”

Plaintiff filed claims for Wage and Hour Law violations, handicap discrimination in violation of the LAD, and Conscientious Employee Protection Act (“CEPA”) violations. After trial, upon Defendant’s motion, Plaintiff’s claims were dismissed in their entirety. The trial court dismissed the wage and hour claim because it found that the damages were too speculative. It dismissed her discrimination claim because it found that Plaintiff had not established any causal relationship or adverse employment action which was taken because of her handicap. The Appellate Division, while affirming the dismissal of the CEPA claims, restored both the claim of handicap discrimination under the LAD and the Wage and Hour claim.

Specifically, the Appellate Division found that Plaintiff had made out a prima facie case of handicap discrimination, under the modified test it constructed: Plaintiff had shown that she was handicapped, was performing her job appropriately, was subjected to adverse employment action, and could show a causal connection between adverse employment action and her handicap. Specifically, the Court found that the requirement that Plaintiff work overtime without pay constituted adverse employment action on account of her handicap: “[i]t was her vulnerability as a handicapped person that enabled defendant to continuously require plaintiff to work extra hours without pay.” Thus, the Court remanded Plaintiff’s LAD claim for trial.

The Court also concluded that Plaintiff had not only established a prima facie case that she worked without compensation, but also that there was sufficient evidence for a jury to calculate damages, even though the evidence regarding Plaintiff’s actual hours of unpaid overtime was imprecise. The Court noted that the courts can fashion a remedy where a wrong and damages are certain, as long as there is sufficient evidence to make a “fair and reasonable estimate of the damages.” The Court thus also remanded the Wage and Hour claim for trial.

It is noteworthy for employers that the Mosley decision permits recovery under both the LAD and the Wage and Hour Law for the same “wrong” – the failure to pay overtime – when the failure to pay overtime results from discrimination. The employee’s ability to assert an LAD claim raises the stakes for the employer considerably, as under the LAD the employee can seek damages for pain and suffering and punitive damages as well as for lost wages.