As I have said before, it is a widely view that individuals are much better off having their employment law disputes resolved in court rather than in arbitration.  Fortunately, a recent decision by the New Jersey Appellate Division helps make it more difficult for employers to force employment law cases into arbitration.

Eleison Pharmaceuticals, LLC hired Forrest Anthony as its Vice President and Chief Medical Officer.  They entered into a three year employment contract, pursuant to which Mr. Anthony would receive a $250,000 annual base salary plus bonuses.  The contract requires the parties to use a “phased dispute resolution process” for any disputes arising out of the agreement.  The final step of the dispute resolution process is binding arbitration.

Employment contact contains arbitration clauseMr. Anthony eventually filed a lawsuit against Eleison in which he alleged that the company owes him over $263,000 in unpaid salary.  Among his claims, he asserted that the company violated the New Jersey Wage Payment Act because it (1) did not pay him at least once per month; (2) did not pay him at least minimum wage; (3) did not pay him time-and-a-half when he worked more than 40 hours per week; and (4) did not pay him all wages he was owed when his employment relationship terminated.  In addition, he alleged the company breached his employment contract by failing to pay his full salary.

Older worker pursues age discrimination lawsuitLast month, New Jersey’s Appellate Division reversed a trial court’s ruling that had dismissed an employee’s age and disability discrimination case.

Spencer Robinson worked for Armadillo Automation, Inc., also known as Onyx Valve Co., in its assembly department.  When Onyx hired Mr. Robinson, he was 60 years old.  According to Mr. Robinson, when he was hired he made it clear he had a lower back condition and needed a stool so he could sit during the workday.  Onyx provided him a stool.

Approximately six years later, Mr. Robinson experienced neck pain while he was working.  He claims he reported his injury to the company’s vice president, who refused to send him the doctor and indicated he did not believe it was a workplace injury.  Mr. Robinson further alleges the vice president told him he would not take him to the hospital unless he was “passed out on the floor or profusely bleeding.”

A ruling opinion from the United States District Court for the District of New Jersey recognizes that an employee can be protected by New Jersey’s whistleblower law, the Conscientious Employee Protection Act (“CEPA”), even if her employer knew about the issue before the employee objected about it.

Employee Time CardJacqueline Martelack worked for Toys ‘R’ Us, Inc. as a cashier.  After she was promoted to become a Human Resources Department Supervisor, she told the employee who was training her that someone had been changing her time cards so she was not paid when she worked during her lunch break.  Toys ‘R’ Us investigated her allegations and eventually confirmed that she and her coworkers were not being paid during scheduled breaks that they did not actually take.  After the investigation, Toys ‘R’ Us paid the employees other than Ms. Martelack the wages they were owed for this unpaid work.

In the meantime, Toys ‘R’ Us told Ms. Martelack that she should stop reporting to her current store because it was going to transfer her to another location.  However, it did not assign her to work for two months, and she eventually concluded that she had been fired.  Ms. Martelack subsequently filed a lawsuit alleging in which she alleged, among other things, that Toys ‘R’ Us failed to pay her full hourly wage in violation of the Fair Labor Standards Act (“FLSA”), and fired her in violation of CEPA.

Earlier this year, the New Jersey Supreme Court ruled that in an employment discrimination lawsuit the employee’s treating physician can offer medical opinions relating to the medical treatment without having to be designated an expert witness.

Treating physician permitted to testify as expert witness
Patricia Delvecchio worked for the Township of Bridgewater as a police dispatcher.  Ms. Delvecchio suffers from irritable bowel syndrome (“IBS”).  She claims her IBS is a disability which Bridgewater failed to accommodate, in violation of the New Jersey Law Against Discrimination (“LAD”).  Specifically, she asked the department not to require her to work the night shift because doing so exacerbated her IBS.  The town refused, claiming doing so would impose an undue hardship since it would have to require other dispatchers to work the night shift more frequently.  Bridgewater also denied Ms. Delvecchio’s requests to take an extended sick leave.

Eventually, the Township asked Ms. Delvecchio to resign.  Ms. Delvecchio refused, and instead accepted a job as a records clerk, a position with a lower salary than her previous job as a police dispatcher.  Ultimately, Bridgewater fired Ms. Delvecchio for “neglect of duty” and “chronic/excessive absenteeism” because she had exceeded her allotment of sick leave.

Labor Lawyer Joseph S. FineRabner Baumgart Ben-Asher & Nirenberg, P.C. is pleased to announce that Joseph S. Fine has become Of Counsel to the firm.

Joe represents unions and employees in arbitrations, mediations, and negotiations, and in litigation at the National Labor Relations Board (“NLRB”) and before state and federal courts, and to counsel employees in negotiating employment and severance agreements.

He also serves as an arbitrator and mediator of labor and employment disputes and as a municipal hearing officer for employment matters.

Earlier this week, I was quoted in the New Jersey Law Journal regarding the lawsuit Grethen Carlson recently filed against Roger Ailes, the CEO of Fox News Network.  Ms. Carlson alleges that Mr. Ailes sexually harassed her and eventually fired her as a Fox News anchor because she resisted his sexual advances.

Ms. Carlson filed her lawsuit in Bergen County, New Jersey.  However, Mr. Ailes had the case removed to Federal Court.  He is currently seeking to force the case into a confidential arbitration rather than a public court.  Mr. Ailes is relying on the fact that Ms. Carlson’s employment contract with Fox News includes an arbitration clause.

Judge to decide whether case must go to arbitrationAccording to the Law Journal article, Fox News Suit Could Hinge on Disparate Arbitration Stances in NY, NJ, Ms. Carlson is claiming the arbitration clause does not apply to her case because Mr. Ailes is not a party to her employment agreement with Fox News and is not even mentioned in it.  In contrast, Fox is arguing that a lawsuit against Mr. Ailes in his capacity as Fox’s CEO is in effect a lawsuit against the network, and that the arbitration clause is broad enough to encompass this dispute because it arises out of Ms. Carlson’s employment relationship with it.

Woman being sexually harassed by bossThe New Jersey Supreme recently ruled that evidence showing an employer told a key witness to provide false information during a company’s internal sexual harassment investigation can be relevant at the trial.

Tonique Griffin, Virginia Best and Rosalyn Walker, three female employees of the City of East Orange, claim their supervisor, Obed Prinvil, created a sexually hostile work environment for them.  Specifically, Ms. Griffin and Ms. Best claim Mr. Prinvil kissed them, and Ms. Walker alleges he repeatedly told her he was attracted to her, loved her and wanted to be “more than just friends,” and once tried to kiss her.

After the three women reported Mr. Prinvil’s harassment, the City hired an employment lawyer, Dina Mastellone, to investigate.  After Ms. Mastellone had finished interviewing witnesses, the City suggested she should interview one of the Mayor’s aides, Corletta Hicks.  Ms. Hicks then made negative statements to Ms. Mastellone about all three women, including that Ms. Griffin and Ms. Best “have always been a mess,” that Ms. Griffin “preys on older married men,” that she suspected Ms. Griffin had a “personal relationship” with Mr. Prinvil, and that Ms. Griffin had serious financial problems.  In contrast, Ms. Hicks described Mr. Prinvil as a “phenomenal director” who always acted professionally in the workplace.

Last week, the New Jersey Supreme Court concluded that the New Jersey Law Against Discrimination (“LAD”), which includes a prohibition against marital status discrimination, not only makes it unlawful for employers to discriminate against employee because they are married or single but also because they are separated, engaged, or seeking a divorce.

Robert Smith worked for the Millville Rescue Squad for 17 years, most recently as its Director of Operations.  Mr. Smith’s wife, Mary Smith, also worked for the Squad.  In 2005, Mr. Smith had an affair with one of his subordinates.  When Mrs. Smith learned about her husband’s affair, she reported it to his immediate supervisor, John Redden.

Employers Cannot Discriminate Based on DivorceIn early 2006, Mr. Smith moved out of his home and told Mr. Redden that his marriage had collapsed.  On February 16, 2006, Mr. Smith told Mr. Redden he did not think there was any chance he would reconcile with his wife.  In response, Mr. Redden indicated that he expected it would be an “ugly divorce.”  Mr. Redden also told Mr. Smith he had previously discussed the issue with the Squad’s Board of Directors, but would not have done so if he believed there was any chance Mr. Smith would reconcile with his wife.  Mr. Redden fired Mr. Smith the next day.

Earlier this week, the New Jersey Supreme Court ruled that private parties cannot agree to shorten the two year statute of limitations that applies to the New Jersey Law Against Discrimination (“LAD”).

Employment Application Cannot Waive Statute of LimitationsThe case was filed by Sergio Rodriguez.  When Mr. Rodriguez applied for a job as a Helper for Raymours Furniture Company (better known as Raymour & Flanigan), he signed a job application.  The application contained a provision requiring him to bring any legal claims relating to his employment within 6 months after the action that becomes the subject of the lawsuit, and waiving any statute of limitations to the contrary.

Ramours hired Mr. Rodriguez.  In April 2010, he injured his knee at work.  He filed a workers’ compensation claim and received benefits.  After undergoing knee surgery and physical therapy, he was cleared to return to work starting on September 14, 2010.  Mr. Rodriguez initially was on light duty for two weeks.  Raymours fired him on October 1, 2010, two days after he returned to full duty work.

Employees Silenced by Non-Disparagement AgreementsIt has become extremely common, if not standard practice, for employers to include non-disparagement clauses in settlement agreements and severance packages they offer to their former employees.  These provisions prohibit employees from saying anything negative about their former employers.  They are extremely broad, since they prohibit true but negative statements and opinions.  In addition, they typically prohibit employees from saying anything negative not just about the company itself, but also about its current and previous owners, directors, officers, employees, subsidiaries and parent companies.

The unfortunate reality is that many employees who sign severance agreements either have not read the entire agreement or do not understand or appreciate many of its provisions.  Even individuals who realize they are being asked not to say anything negative about their former employers generally have no choice but to agree if they want the severance pay and other benefits that have been offered to them.  Of course, for someone who has recently lost his or her job it can be difficult to reject a severance offer over something like a non-disparagement clause.  As a result, employees regularly agree not to disparage their former employers.

A recent article in the New York Time, Laid-Off Americans, Required to Zip Lips on Way Out, Grow Bolder, indicates that there is a growing backlash against non-disparagement clauses.  For example, it indicates that several prominent Democrat and Republican members of Congress have questioned the widespread use and misuse of non-disparagement agreements.

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