New Jersey Employment Lawyer Blog
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Last week, the New Jersey Supreme Court permitted criminal charges to proceed against an employee who took documents from her employer to try to prove her employment discrimination and retaliation claims.

business woman copying employer's confidential documentsIvonne Saavedra worked as a clerk for the North Bergen Board of Education. In 2009, she filed a lawsuit which included allegations that the Board had discriminated against her because of her race, ethnicity, national origin and gender, in violation of the New Jersey Law Against Discrimination (“LAD”). She also alleged retaliation in violation of the Conscientious Employee Protection Act (“CEPA”).

In her employment law case, Ms. Saavedra produced copies of documents she took from the Board while she was working for it. This included both originals and photocopies of documents that the Board claims contain “highly confidential student educational and medical records.” According to Ms. Saavedra, she took these documents in an effort to prove her discrimination and retaliation claims. She did so without the Board’s permission.

The Board reported this to the county prosecutor. Eventually, a grand jury indicated Ms. Saavedra for two crimes: official misconduct and theft by unlawful taking of public documents. Her lawyer tried to get these criminal charges dismissed. Among other things, relying on Quinlan v. Curtis-Wright Corp., Ms. Saavedra argued that New Jersey law protects employees who take documents in an effort to support a discrimination lawsuit. I discussed Quinlan in my article: Can You Be Fired For Giving Confidential Company Documents to Your Employment Lawyer?

In December 2013, the Appellate Division denied Ms. Saavedra’s attempt to dismiss the indictment. On June 23, 2015, in State v. Saavedra, the New Jersey Supreme Court affirmed.

The Supreme Court first explained that the allegations against Ms. Saavedra, if true, would support the alleged crimes. It then rejected her arguments that the criminal charges should be dismissed based on the doctrine of fundamental fairness, the criminal statutes were vague as applied to her, prosecuting her under the circumstances would deter other individuals from trying to prove discrimination and retaliation claims, and prosecuting her would violate New Jersey’s public policy in support of preventing discrimination and retaliation. The Court relied heavily on the fact that Ms. Saavedra could have obtained the documents she needed to prove her claims through the discovery process in her civil litigation, instead of engaging in self-help.

However, the Supreme Court indicated that Ms. Saavedra can assert an affirmative defense to the criminal charges against her that she “has a claim of right or other justification based on New Jersey’s policy against employment discrimination, because she removed the documents from her employer’s premises in order to use them to prosecute her civil claim.” In other words, she can try to convince the jury she was justified in taking the documents because she genuinely believed she had the right to take them to try to prove her discrimination and retaliation claims.

The lesson of the Saavedra case is that employees who are considering taking documents from their jobs to help prove a legal claim should do so with caution. While it may be okay to keep copies of documents your employer provided to you, such as your offer letter, employment contract, or performance reviews, it is risky to take documents you are not entitled to keep. This is especially true with respect to the employer’s original documents, and documents that contain private or confidential information. The bottom line is that while although keeping copies of certain documents could help you prove your legal claim, employees should be very careful not to do anything that could subject them to discipline, let alone to criminal prosecution.

For more information about the Saavedra case, please see my previous article: Prosecuted for Trying to Prove Discrimination?

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The United States Supreme Court recently ruled that an employer cannot refuse to hire a job candidate because she needs a reasonable accommodation for her religious practice even if the prospective employee did not request an accommodation.

The decision was made under Title VII of the Civil Rights Act of 1964, a federal anti-discrimination law. Among other things, Title VII prohibits discrimination based on religion. For example, it prohibits employers from refusing to hire or from firing an employee because of his or her “religious observance and practice.” It also requires employers to provide reasonable accommodations to employees for their religious practices, observances and beliefs.

The case, Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., involves Samantha Elauf, an individual who applied for a job at Abercrombie & Fitch Stores, Inc. Ms. Elauf is a practicing Muslim who wears a headscarf. After interviewing Ms. Elauf, Abercrombie determined that she was qualified for the job. However, it did not offer her a position because the company’s “Look Policy” that prohibits employees from wearing “caps” because the company considers them to be too informal for its image. Abercrombie made this decision even though it realized Ms. Elauf’s probably wore her headscarf because of a religious belief.

The United States Equal Employment Opportunity Commission (“EEOC”) sued Abercrombie, claiming its decision not to hire Ms. Elauf violated Title VII. The trial court eventually found in favor of Ms. Elauf, granted summary judgment to her and awarded her $20,000 in damages. However, on appeal the Court of Appeals for the Tenth Circuit reversed and instead granted summary judgment to Abercrombie. The Tenth Circuit concluded that an employer is not obligated to provide a reasonable accommodation for an employee’s religion unless it had actual knowledge that the employee needs such an accommodation.

The Supreme Court overturned the Tenth Circuit’s ruling. It explained that Title VII prohibits discrimination that is motivated by an employee’s religion. It concluded that an employer does not necessarily have to be certain about an employee’s religion for its actions to be motivated by her religion. Accordingly, it held that “[a]n employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.” This does not necessarily require that employer knows the job candidate needs an accommodation for her religion, but also includes situations in which the employer correctly suspects or believes the employee needs such an accommodation if the employee’s need for an accommodation is a motivating factor in the employer’s decision not to hire her.

The Supreme Court noted that this is different from the reasonable accommodation requirement under the American’s with Disabilities Act (“ADA”). The ADA requires employers to provide “reasonable accommodations to the known physical or mental limitations” of the employee. In contrast, Title VII does not include an express limitation that the employee’s religious belief be “known” to the employer.

Accordingly, the Supreme Court reversed the Tenth Circuit’s ruling and remanded the case back to the trial court.

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A recent New Jersey Appellate Division ruling provides a good example of how dangerous it can be to compete with your current employer.

B&H Securities, Inc. designs, sells and maintains security monitoring systems. In spring 2007, three of its employees, Michael Poisler, Marc Palladino and Duane Pinkney, decided to start a competing business, Advanced Integration Security. At the time, Mr. Pinkney was B&H’s IT manager, Mr. Poisler was its sales manager, and Mr. Palladino was one of its salesmen.

A “Confidentiality Clause” in B&H’s employee handbook states that after leaving their job, B&H employees cannot contact the company’s customers. When he was hired by B&H, Mr. Pinkney signed a document agreeing to abide by this clause for 48 months after leaving the company. The company did not require Mr. Palladino or Mr. Poisler to sign any such agreement.

While still employed by B&H, Mr. Pinkney solicited two of B&H’s customers on behalf of Advanced Integration Security. He also altered a five-year agreement between B&H and one of its customers to permit the customer to cancel its contract by giving 30 days’ notice. He then resigned from B&H to work for Advanced.

On July 1, 2007, Mr. Palladino resigned from B&H and began working for Advanced. Meanwhile, Mr. Poisler continued to work for B&H, and provided inside information to Mr. Pinkney while simultaneously working for Advanced on weekends and evenings.

Employee stealing company's confidential informationIn August 2007, B&H sued Advanced, Mr. Pinkney and Mr. Palladino. The company alleged the three misappropriated the company’s trade secrets and confidential information, breached the confidentiality provision in their employment contracts, interfered with B&H’s contractual relations with its customers, engaged in unfair competition, and breached the implied covenant of good faith and fair dealing in their employment agreements. B&H subsequently added Mr. Poisler as a defendant, and added a claim under New Jersey’s Computer Related Offenses Act (“CROA”).

Following a bench trial, the court ruled in favor of B&H on all of its claims. It awarded $737,087 in compensatory damages, plus $100,000 in punitive damages against each of the defendants other than Mr. Poisler. The court subsequently awarded an additional $825,085 in attorney’s fees under the CROA.

Mr. Poisler appealed. In B & H Securities, Inc. v. Pinkney, the Appellate Division upheld the lower court’s finding that he violated the covenant of good faith and fair dealing “by participating in the misappropriation of B&H’s confidential information” while he was working for B&H. The court did so even though Mr. Poisler did not have a written employment contract with B&H, finding that since he was an employee of B&H he necessarily had an agreement with the company.

The Appellate Division also found sufficient evidence to establish that Mr. Poisler violated CROA. Among other things, it found evidence supporting the trial court’s finding that he assisted Mr. Pinkney’s unauthorized access to data on the company’s computer system. The Court noted that although B&H authorized Mr. Pinkney to access its computer system, he impermissibly transferred that data to his own computer in violation of CROA.

The Appellate Division also affirmed the lower court’s finding that Mr. Poisler breached his duty of loyalty to B&H even though he did not sign the company’s Confidentiality Clause since every employee has a duty of loyalty to his or her employer.

However, the appellate court reversed the award of $737,087 in compensatory damages against Mr. Poisler. It explained that the trial court calculated this figure based on Mr. Pinkney’s written agreement not to use the company’s confidential information for 48 months. However, Mr. Poisler did not sign a similar agreement, and only worked for Advanced for approximately 20 months. Accordingly, the Appellate Division asked the trial court to reconsider these damages, and to explain the basis for its new ruling.

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The Second Circuit Court of Appeals recently held that the Fair Labor Standards Act (“FLSA”) prohibits employers from retaliating against employees who complain to their employer’s about a violation of the FLSA. The FLSA is a federal wage and hour law that, among other things, establishes minimum wage and overtime requirements. The Second Circuit handles federal appeals out of several states, including New York.

The case, Greathouse v. JHS Security Inc., reversed a 1993 Second Circuit ruling to the contrary.  Specifically, in Lambert v. Genesee Hospital the Second Circuit concluded that because the FLSA’s anti-retaliation provision prohibits employers from retaliating against employees who “filed” a complaint, it applies only protects employees who filed a written complaint with a government agency. The opinion in Greathouse expressly overrules Lambert.

Darnell Greathouse worked as a security guard for JHS Security. He made numerous oral complaints to his boss, Melvin Wilcox, because the company was late paying him and took illegal deductions from his salary. For example, in October 2011 Mr. Greathouse complained to Mr. Wilcox because the company had not paid him in several months. In response, Mr. Wilcox told him: “I’ll pay you when I feel like it.” Mr. Wilcox then pulled out a gun and pointed it toward Mr. Greathouse. Mr. Greathouse took this to mean he was fired.

JHS did not respond to Mr. Greathouse’s lawsuit. As a result, the United States District Court for the Southern District of New York entered a default judgment in Mr. Greathouse’s favor. After a proof hearing, the court awarded Mr. Greathouse more than $30,000, which included lost wages and overtime pay. However, relying on Lambert, it dismissed his retaliation claim.

On appeal, the Second Circuit relied heavily on a 2011 United States Supreme Court opinion, Kasten v. Saint-Gobain Performance Plastics Corp.   That case holds that the FLSA’s anti-retaliation provision applies to both oral and written complaints if the complaint is “sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection.”

Kasten involved an employee who experienced retaliation after he complained to his supervisor that the company’s time clocks were in a location that prevented employees from getting paid for the time they spent changing into and out of their work clothes. The Supreme Court did not decide whether the FLSA protects employees who make internal complaints because the employer did not properly raise that issue on appeal. I discussed Kasten in a previous article: U.S. Supreme Court Rules FLSA Forbids Retaliation Against Employees Who Make Oral Complaints.

In addition to relying on Kasten, the Second Circuit noted that most other Court of Appeals that have considered the issue have concluded that the FLSA prohibits employers from retaliating against employees who make internal complaints about violations of the statute. The court also relied on the fact that the FLSA is supposed to be interpreted broadly to advance its remedial and humanitarian purposes.

Ultimately, the Second Circuit concluded that the FLSA’s anti-retaliation provision protects employees who complain to their employers about violations of the law if a reasonable employer would understand the employee was claiming that the employer violated the FLSA. Although the employee’s complaint does not have to be formal, there does have to be some degree of formality. For example, the protection from retaliation does not apply to employees who merely make passing comments about a violation of the FLSA. But the Second Circuit made it clear that employees do not have to file a complaint with a government agency to be protected by the FLSA’s anti-retaliation provision.

Accordingly, the Second Circuit remanded the case to the District Court so it can determine whether Mr. Greathouse’s complaint is protected under the FLSA.

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New Jersey’s Appellate Division recently ruled that the New Jersey Law Against Discrimination (“LAD”) protects employees who are harassed because of the race of their spouses, fiancés, or children.

Businessman Harassing His SubordinateShi-Juan Lin, who is Chinese, worked for Dane Construction Company. Ms. Lin’s is engaged to a man who is black and of Jamaican descent. The couple has a son who is of Jamaican and Chinese descent.

According to Ms. Lin, Dane subjected her to a hostile work environment because of her race, which eventually forced her to resign (a “constructive discharge”). Specifically, she heard the company’s owner and Chief Executive Officer, Pat Buckley, referred to numerous individuals by using the “N-word.”

Ms. Lin objected to Mr. Buckley’s racial epithets. For example, when he called someone a “f-cking Jamaican n–ger,” Ms. Lin reminded him that her fiancé and son are both Jamaican. Mr. Buckley simply responded that he was not referring to her son or her fiancé. Ms. Lin asked Mr. Buckley not to use that term in front of her because it is “really hurtful” since her son is Jamaican, but he continued to use it. Likewise, when Ms. Lin complained to her immediate supervisor about Mr. Buckley’s racist language, he told her that is just how Mr. Buckley is. Ultimately, Ms. Lin resigned, telling Mr. Buckley she could not continue to work for the company because of his continued use of the N-word.

Ms. Lin filed a claim with the New Jersey Division on Civil Rights (“DCR”). She eventually had a hearing with an Administrative Law Judge (“ALJ”). The ALJ considered the evidence from the perspective of a reasonable person of Chinese descent and concluded it was insufficient to support a harassment or constructive discharge claim. Accordingly, he dismissed her case.

However, the Director of the DCR disagreed. He recognized that Ms. Lin is a member of a “black family” and concluded that Mr. Buckley’s behavior created established a hostile work environment and forced Ms. Lin to resign. The Director ordered Dane and Mr. Buckley to pay Ms. Lin $25,000 in emotional distress damages, over $31,000 in attorney’s fees, and a $5,000 penalty to the State.

In Lin v. Dane Construction Co., New Jersey’s Appellate Division ruled it is unlawful for an employer to discriminate against an employee because of the race of her child, spouse or fiancé. However, it explained that an employee would not necessarily have a claim if her employer only discriminated against the employee’s child, spouse or fiancé.

Ultimately, the court upheld the DCR’s ruling. It found sufficient evidence to support Ms. Lin’s allegations that Mr. Buckley used racial epithets. It also found Mr. Buckley had harassed Ms. Lin because he continued to use the N-word after she made it clear his comments were particularly upsetting to her because her son is Jamaican.

The Appellate Division noted that the N-word is a term that is so hateful that even a single use of it can create a hostile work environment, especially when it is used by a supervisor. It also indicated that harassment directed toward someone else is generally less hurtful than harassment directed at the employee herself. However, it found this was not fatal to Ms. Lin’s case since Mr. Buckley continued to use the N-word after Ms. Lin told him why she was particularly offended by his racist language, and since he took no actions in response to Ms. Lin’s complaints about his offensive language even though he is is the owner and CEO of the company.

Further, the court explained that providing a constructive discharge requires an employee to show conduct that is “so intolerable that a reasonable person would be forced to resign rather than continue to endure it.” Although this is a very high standard, the court ruled that Mr. Buckley’s behavior was sufficient egregious to support the DCR’s finding that Ms. Lin had been constructively discharged. Accordingly, it affirmed the DCR’s ruling.

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On April 20, 2015, New York City Mayor Bill DeBlazio signed a new employment law into effect. The new law amends the New York City Human Rights Law (“NYCHRL”) to permit the New York City Commission on Human Rights to hire individuals who will either apply for or inquire about job opportunities to determine whether they experience any discrimination that violates the NYCHLR.

Specifically, for a one year trial period these “testers” will conduct at least 5 investigations at New York City businesses. The testers will work in pairs, making sure they have similar qualifications for the job but a difference between them in one legally protected characteristic such as their “actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation or alienage or citizenship status.” The New York City Commission on Human Rights will report any actual or perceived discrimination it uncovers during the to its law enforcement bureau.

By March 1, 2017, the Commission is required to prepare a report regarding the information it learns during the investigations, including which protected classes it tested, the number of times there appeared to be discrimination based on each such protected class, and a description of the actual or apparent discrimination uncovered by the investigation.

The first investigation is required to begin no later than October 1, 2015.

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The United States Supreme Court recently ruled that the federal Pregnancy Discrimination Act (“PDA”) can require employers to provide reasonable accommodations to women who are pregnant even if they are not disabled.

The PDA establishes that pregnancy discrimination in the workplace violates federal law. It also includes a provision that requires employers to treat “women affected by pregnancy . . . the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.”

Supreme CourtIn the case, Peggy Young worked for United Parcel Service, Inc. (“UPS”) as part-time driver. Although UPS requires its drivers to be able to lift packages up to 75 pounds, during the first 20 weeks of her pregnancy Ms. Young’s doctor advised her not to lift more than 20 pounds. UPS provides accommodations to disabled employees who are unable to lift 75 pounds, as well as to employees who have lost their Department of Transportation certifications. The company refused to provide this accommodation to Ms. Young. Instead, it placed her on an unpaid leave of absence during most of her pregnancy. Ms. Young sued, alleging UPS violated the PDA by failing to accommodate her lifting restrictions.

Both the District Court and the Court of Appeals dismissed Ms. Young’s case, finding it was not relevant that UPS provided the same accommodation to its disabled employees. It reasoned that those employees were not similar enough to Ms. Young to provide a valid comparison. On appeal, the Fourth Circuit affirmed.

However, in Young v. United States, the Supreme Court disagreed. It held that an employee can establish an initial case of a failure to accommodate pregnancy under the PDA by showing (1) she is pregnant; (2) she sought an accommodation; (3) the employer did not accommodate her; and (4) the employer accommodated other employees who are “similar in their ability or inability to work.” If the employee does so, then the employer has to identify a non-discriminatory reason for failing to accommodate the employee. This cannot simply be the fact that it is more expensive or less convenient to accommodate pregnant women.

Assuming the employer identifies a non-discriminatory reason for failing to accommodate the pregnant worker then the employee can show that the employer’s justification for failing to accommodate her is a pretext (or excuse) for pregnancy discrimination. The Supreme Court indicated that a worker can establish this by showing the employer’s justification for failing to accommodate her is not “sufficiently strong” to justify a “significant burden on pregnant workers” imposed by its policies. For example, an employee show the employer accommodates a significant percentage of non-pregnant employees, but does not accommodate a significant percentage of its pregnant workers.

Based on its ruling, the Supreme Court sent the case back to the Fourth Circuit to determine whether Ms. Young has presented enough evidence to support her claim.

While Young may be a groundbreaking case in many parts of the county, as I previously discussed, both New Jersey (New Jersey Passes Law Prohibiting Pregnancy Discrimination) and New York City (New Rights for Pregnant Employees in NYC) already require even more generous accommodations to women who are pregnant.

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Last week, I discussed how to calculate the potential value of a wrongful termination case at a trial. However, most employment law cases settle rather than going to a trial. Accordingly, it also is important to be able to assess the potential settlement value of your case.

Risk of Loss

Trial CourtroomSince proving discrimination or retaliation requires you to show what is in someone else’s mind, most of these cases are inherently risky. As a result, when trying to determine what might be an acceptable settlement you should factor in the risk that you could lose your case.

For example, if you estimate your damages are approximately $1 million and you have a 50% chance of winning your case, then mathematically your case might be viewed as having a $500,000 settlement value. In contrast, if you have a 70% chance of winning the same case, then it would have a mathematical value of $700,000.

Of course, nobody can predict the actual odds that you will win or lose your case. However, with the advice of an experienced employment lawyer you can make reasonable predictions about whether your case involves a relatively high or low risk of winning or losing at a trial.

Risk Adversity

Most people try to avoid taking unnecessary risks in life, especially when they the stakes are high. For example, although a 50% chance of receiving $1 million theoretically has a mathematical value of $500,000, most people would be willing to accept a guaranteed $450,000 instead of taking this risk. This concept is known as risk adversity.

Someone who is especially risk adverse might be willing to accept $300,000 rather than taking this risk. In contrast, someone who is a gambler might not be willing to accept less than $500,000. Your current personal financial circumstance often impacts how much risk you are willing or able to take.

Costs of Litigation

Another factor you should consider in estimating an appropriate settlement value for your case is what it will cost you to get to (and through) a trial. Depending on your agreement with your lawyer, this may include actual dollar costs such as out-of-pocket costs or legal fees. While most employment discrimination and retaliation cases allow you to can recover these legal fees and costs from your former employer if you win, you will not be able to recover these costs if go to trial and lose your case.

Aside from dollar costs, every employment law case requires a significant commitment of time and energy. As a result, when deciding your settlement position you should consider the dollar and energy you would save.

Emotional Considerations

Aside from dollars, there are emotional factors to consider with respect to settling your case. Most employment law cases are deeply personal. You have to determine whether you will feel better if you are able to resolve your case and move on with your life, or will regret your decision to settle and always wonder if you made a mistake. In litigation, individuals often change how these emotional considerations impact their decisions as time passes.

Practical Considerations

Yet another factor you should be aware of when assessing the settlement value of your case is what your former employer is likely to be willing and able to afford to pay. For example, you should understand that a relatively small and unprofitable company that does not have insurance coverage is unlikely to be able to make the same type settlement that a Fortune 500 company, or a smaller company with insurance coverage, might be able to afford. While that does not necessarily mean you should accept a lower settlement as a result, it is something you should at least understand.

Bottom Line

There is no one right or wrong answer to determine your settlement position. Rather, you should speak to your employment lawyer about these and any other relevant factors to help you assess your position.

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There is no one way to predict the precise value of an employment law case before a trial. Among other things, juries do not necessarily use any particular formula, and verdicts often represent compromises. However, it is possible to estimate what you might receive if you win your case at a trial.

Economic Damages

To estimate your economic damages in a wrongful termination case, you need to calculate your total annual compensation (salary, bonus, commissions and benefits) from the job you lost. Unless you use an expert, this is likely to require you to estimate the value of some of your lost benefits, and to make assumptions about future raises, discretionary bonuses and commissions.

Civil jury in employment law caseOnce you calculate your annual compensation, you should multiple it by the number of years you actually were unemployed, and if applicable the number of years into the future you reasonably anticipate you will remain unemployed. In doing so, you should keep in mind your obligation to make all reasonable efforts to mitigate your damages by finding another job. You also should factor in any likely raises or other changes to your compensation package.

If you already have found another job that has equal or better compensation to the job you lost, then your economic damages stop when you begin that job. Until that happens, you need to subtract from your economic damages any income you earned after you were fired, unless you can prove you would have earned that additional income even if you had not been fired (such as income from a second job you held before you were fired).

Emotional Distress Damages

Emotional distress damages can be more difficult to predict than economic damages because they are totally subjective. There is no formula for a jury to calculate emotional distress damages. However, in New Jersey emotional distress awards in employment law cases tend to range between $50,000 and $150,000.

Factors that would make an emotional distress damages worth closer to or above $150,000 include a diagnosed medical condition that was caused by the wrongful termination or harassment such as Major Depressive Disorder or Post Traumatic Stress Disorder, or a severe personal harm that was caused by being fired, such as a divorce due to the stress of losing your job or losing your home due to financial problems caused by losing your income.

Likewise, severe harassment such as physical sexual harassment or the use of particularly hateful racial epithets can warrant especially high emotional distress damages award.

Punitive Damages

Punitive damages can be awarded in some employment law cases to punish your former employer. However, punitive damages are reserved for a relatively small percentage of cases in which the employer’s actions were “especially egregious.” In addition, they are not permitted unless the employer’s upper management participated in the unlawful conduct toward you. As a result, in predicting the value of employment cases it is difficult to give too much (if any) value to punitive damages unless the facts are particularly extreme and appalling. That being said, when punitive damages are awarded they can be many times higher than your actual damages.

Attorneys’ Fees and Costs

In most discrimination and retaliation cases in New Jersey, if you win at a trial your former employer is likely to be required to pay for your attorneys’ fees. This calculation is based on what you would have paid your lawyer if you had paid by the hour, which might not be how you actually agreed to pay your lawyer. These legal fees, as well as your out-of-pocket costs of pursuing the lawsuit, are part of your potential verdict at a trial.

Now that you have an idea how to estimate the value of a wrongful termination case at a trial, next week I will discuss how to figure out a reasonable settlement value of an employment case.

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New regulations issued by the United States Department of Labor (DOL) make it clear that the Family & Medical Leave Act (FMLA) protects spouses in same sex marriages.

same-sex marriage protected under FMLAThe FMLA is a federal law which, among other things, guarantees covered employees can take up to 12 weeks per year off from work to care for their own serious health condition, a serious health condition of a member of their immediate family, or for pregnancy, childbirth or adoption. To be covered, an employee must have worked for the employer for at least 12 months, worked at least 1,250 hours for the employer during the previous 12 months, and worked at a location at which the employer has at least 50 employees within a 75 mile radius.

The FMLA defines “immediate family” to include a parent, child or spouse. However, until last year’s Supreme Court decision in United States v. Windsor, the federal government did not recognize same sex marriages. Therefore, the FMLA did not protect employees in same sex marriages to the same extent it protects employees in opposite sex marriages. The new regulations are intended to correct this problem.

For instance, the new regulations make it clear that the term “spouse” includes partners in same sex marriages. Specifically, it includes (1) any individual who is considered married under the law of the State in which the marriage was entered into, and (2) any individual who is married outside of the United States if the marriage is recognized both in the country in which the marriage took place and in at least one State.

In addition to expanding the definition of spouse, the new regulations make it clear that irrespective of whether they are the same or opposite sex, both parents are entitled to take FMLA leave for the birth or adoption of their child, and to bond with their newborn child during the first year after birth. The previous version of the regulations referred to these rights belonging to the “mother” and “father,” terms that assumed a marriage is only be between a man and a woman.

Likewise, the new regulations make it clear that a spouse of either gender is entitled to take time off to care for his or her pregnant spouse who is incapacitated, providing prenatal care, or has a serious health condition following childbirth. Previously, the regulations only gave this right to the “husband” on the assumption that the spouse who is not pregnant would be a man.

Numerous other provisions of the FMLA regulations were revised to be consistent with same sex couples. For example, previous rights of “the mother” were changed to be rights of the “expectant mother” in recognition that marriages can have two mothers, and the rights in question belong to the mother who is pregnant. These rights include time off due to incapacity as a result of pregnancy, for prenatal care, or for the expectant mother’s own serious health condition following childbirth.

These new regulations are scheduled to go into effect on March 27, 2015.

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