New Jersey Employment Lawyer Blog

Ownership in a closely held corporation can offer a great opportunity. If the business is successful, corporate ownership can be financially lucrative, offer a career with excellent job security, and otherwise can be a fulfilling venture. Unfortunately, sometimes the controlling shareholders in a small business can take advantage of one or more minority shareholders by ignoring their input, refusing to their share the profits, firing them from their seemingly secure jobs, or otherwise treating them unfairly.

Fortunately, New Jersey law offers protection for the shareholders of closely held corporations from oppression by the controlling shareholders. Specifically, the New Jersey Oppressed Shareholder Statute protects the owners of corporations with 25 or fewer shareholders by granting courts the authority to award a wide variety of relief when the controlling shareholders "have acted fraudulently or illegally, mismanaged the corporation, or abused their authority as officers or directors or have acted oppressively or unfairly toward one or more minority shareholders in their capacities as shareholders, directors, officers, or employees." N.J.S.A. § 14A:12-7(1).

Among its many protections, the Oppressed Shareholder Statute allows courts to force a corporation to buy out an oppressed shareholder's stock at a fair price. Although the statute lists dissolution as the remedy when the parties are unable to agree to a price for a buyout, dissolution is considered an extreme remedy that courts impose with caution, only after carefully balancing the interests at stake. Generally, a buyout is considered a more desirable remedy, with the corporation or the majority shareholders buying out the minority shareholder. If the parties are unable to agree on a fair buyout price, the court can order the corporation to purchase the oppressed shareholder's stock, and in some circumstances can even compel the other shareholders to buy out the minority shareholder.

In addition to protecting a non-controlling shareholder's equity interest in a closely held corporation, the Oppressed Shareholder Statute protects other interests. N.J.S.A. § 14A:12-7(8)(a). The New Jersey Supreme Court has recognized that one such related interest is the expectation that the shareholder will remain employed with the corporation. Thus, in addition to the value of the shareholder's ownership in the business, in many situations part of a minority shareholder's ownership interest in a closely held corporation can include the right to work for the company in a managerial position, with long-term job security and a corresponding salary, as well as a say in the operation and management of the business and its plans for the future. Accordingly, if an employee shareholder is forced out of a closely held corporation, in addition to receiving the value of his or her shares, he or she may be entitled to recover the value of his or her lost salary and employment benefits.

If you are a minority shareholder in a closely held corporation in New Jersey and the controlling shareholders have refused to give you the share of the profits to which you are entitled, squeezed you out of the operations of the business, or fired you from your position with the company, you may have a claim under New Jersey Oppressed Shareholder Statute. If you would like to learn more about your rights, you should consider contacting an experienced employment lawyer who can evaluate your situation and help determine whether your legal rights have been violated.

The lawyers of our employment law and civil rights law firm, The Nirenberg Law Firm, LLC, are experienced at representing employees in New Jersey, New York State, and New York City whose employment law rights have been violated.

On July 7, 2008, in the case of Roa v. LAFE, the New Jersey Appellate Division ruled that retaliation that occurs after an employee was fired can violate the New Jersey Law Against Discrimination, N.J.S.A. § 10:5-1, et seq. The New Jersey Law Against Discrimination prohibits discrimination in employment, housing and places of public accommodation. It also includes an anti-retaliation provision that makes it unlawful for:

any person to take reprisals against any person because that person has opposed any practices or acts forbidden under [the New Jersey Law Against Discrimination]... or to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by [the New Jersey Law Against Discrimination].

N.J.S.A. § 10:5-12(d).

Roa involved Fernando and Liliana Roa, a husband and wife who worked for LAFE, a New Jersey corporation. Liliani claimed that LAFE's Vice President, Marino Roa, engaged in two extramarital affairs with employees of LAFE. Fernando eventually told Marino's wife about the affairs. According to Fernando and Liliani, Marino then began a campaign of harassment against them. When Fernando told the president of LAFE that Marino was sexually harassing company employees, LAFE ignored his complaint. LAFE eventually fired both Fernando and Liliani.

Fernando and Liliana sued LAFE and Marino for firing them in retaliation for Fernando's complaint of sexual harassment, in violation of the New Jersey Law Against Discrimination. However, they filed their lawsuit more than two years after LAFE fired them. As a result, the trial court dismissed their case because it was filed after the LAD's two year statute of limitations had expired.

However, on appeal the New Jersey Appellate Division reinstated Fernando's case, and sent it back to the trial court for reconsideration. It did so because Fernando alleged that LAFE and Marino continued their pattern of retaliatory conduct toward him after LAFE fired him, and that Fernando filed the lawsuit within two years after that pattern of retaliation stopped.

Specifically, Fernando claimed that LAFE removed him from the company's medical insurance several weeks before the company fired him, and did not reimburse him for his medical expenses until three months after LAFE fired him. Fernando claimed LAFE wrongfully terminating his insurance was another act of retaliation against him. The Appellate Division found that he filed his lawsuit within the statute of limitations because he filed it less than two years after he learned that LAFE had denied his insurance claim, and less than two years after LAFE finally reimbursed him for his medical expenses.

In concluding that this post-termination retaliation was legally actionable under the New Jersey Law Against Discrimination, the court relied on Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006), a United States Supreme Court opinion interpreting Title VII of the Civil Rights Act of 1964. Title VII is a federal law that prohibits employment discrimination because of race, sex, national origin, color, and religion. Burlington recognizes that "the anti-retaliation provision [of Title VII] . . . is not limited to discriminatory actions that affect the terms and conditions of employment." Rather, like the New Jersey Law Against Discrimination, "[t]he scope of the anti-retaliation provision [of Title VII] extends beyond workplace-related or employment-related retaliatory acts and harm."

Roa is the first published New Jersey case to conclude that post-employment retaliation can violate the New Jersey Law Against Discrimination. That is significant because it suggests that other post-termination retaliatory actions would violate the New Jersey Law Against Discrimination. For example, an unwarranted opposition of an employee's application for unemployment insurance benefits, an undeserved negative job reference, or a lawsuit or counterclaim against a former employee, could potentially violate the New Jersey Law Against Discrimination if they are motivated by retaliatory animus. Only time will tell how expansively or restrictively future courts will interpret Roa, and what types of post-termination retaliatory actions will be found to violate New Jersey law.

The employment law attorneys of the Nirenberg Law Firm, LLC, are experienced at representing employees in New Jersey, New York State, and New York City whose employment law rights have been violated.

On August 4, 2008, the New Jersey Supreme Court ruled that repeatedly asking a woman out on a date, even when she repeatedly declines the invitations, does not constitute unlawful sexual harassment. More specifically, New Jersey's highest Court ruled that the harassment alleged was not severe or frequent enough to be legally actionable.

The case, Godfrey v. Princeton Theological Seminary, involved Beth Godfrey and Jennifer Kile, two graduate students in their mid twenties, who were repeatedly asked out on dates by William Miller, a tenant of the Seminary who was in his upper sixties. Godrey and Kile sued the Princeton Theological Seminary for permitting a sexually hostile environment.

Since Godfrey and Kile were not employees of the Seminary, they sued under a section of the New Jersey Law Against Discrimination that states that "[a]ll persons shall have the opportunity . . . to obtain all the accommodations, advantages . . . and privileges of any place of public accommodation. . . without discrimination because of race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation, familial status, disability, nationality, sex , gender identity or expression." Among other things, that section prohibits sexual harassment in many public places. Godfrey and Kile also sued under Title IX of the Education Amendments of 1972, and for breach of contract.

Godfrey's Allegations

Godfrey first met Miller at the Campus Cafeteria in the fall of 2000. In December 2000, he asked her to go to a concert with her. When she turned him down, Miller asked her out again, and Godfrey again said no. When Godfrey saw Miller on campus later that evening, she actively avoided him.

In January 2001, Godfrey received a package from Miller that enclosed a card which detailed Miler's personal life and a package of Winnie the Pooh note cards, both of which Godfrey discarded. However, she sent him a brief thank you note for the gift.

That summer, Miller saw Godfrey and invited her out to lunch. When Godfrey declined the invitation, Miller asked if he could take her out some other day. Godfrey again declined, and told Miller that she would only have lunch with him if they were at a crowded table in the Seminary's cafeteria.

The following weekend, Miller left Godfrey a series of telephone messages, the first asking her out to lunch, the next two inviting her to go to church and lunch, and another inviting her to a picnic and a concert. When Godfrey did not return any of his messages, Miller left her another message stating that we was angry that she had not returned his calls, but inviting her to a picnic with him. Godfrey did not respond to any of Miller's telephone messages.

Godfrey then met with the Seminary's Student Relations Director, Kathy Cook Davis, and told her about Miller's behavior. Cook Davis was sympathetic, and told Godfrey that Miller had also pursued her when she was a student at the Seminary. Cook Davis told Godfrey that the Seminary's Dean of Students, Jeffrey O'Grady, had handled previous complaints about Miller, and would handle her situation when he returned from his vacation.

Kile's Allegations

Kile first met Miller in the fall of 1999 when he approached her at the Seminary's library, where Kile worked. Miller asked Kile for the telephone number of two female students who he wanted to take out for dinner. Kile refused to provide that information to Miller.

On two occasions shortly thereafter, Miller came to the library and showed Kile articles about various ministries. Kile briefly and politely talked to Miller each time.

In January 2000, Kile received a package in the mail from Miller, which contained a greeting card with Miller's picture on it, a newsletter that provided information about Miller's company, and various other items. Kile informally mentioned this to O'Grady.

Starting in September 2000, Kile studied abroad in Sheffield, England. In the spring of that year, Kile was at the Seminary for a week. During that week, Miller approached Kile in the cafeteria, and asked her for her address in England so they could get together. Kile was "freaked out" that Miller knew she was studying in England, and refused to provide her address to him. Miller then asked Kile for her email address, which Kile provided so she could politely get out of the conversation. She then told Miller that she had to attend chapel service and left the cafeteria.

Later that day, Miller approached Kile as she was leaving chapel service, and told her he had attended the service because she told him she would be there. Kile considered it disturbing that Miller had followed her, and quickly walked away.

A few weeks later, Kile received an e-mail from Miller indicating that he was coming to England. In the email, Miller invited Kile to meet him in London to attend a lecture and go out to dinner. Kile ignored Miller's email.

In May 2001, Kile learned that Godfrey was planning to speak to O'Grady about Miller's behavior. Shortly thereafter, Kile emailed O'Grady, and provided him details about Miller's behavior toward her.

The Seminary's Response to Grady and Kile's Complaints

After Godfrey and Kile complained to O'Grady, the Seminary sent a letter to Miller telling him that he was prohibited from entering the Campus Center for any reason other than to attend public events. In the Fall of 2002, Godfrey and Kile informed the Seminary that Miller had violated that prohibition at least twice. They subsequently met with the Seminary's psychology counselor who specializes in sexual harassment issues, and received copies of the Seminary's sexual harassment policy. They then filed formal internal complaints of sexual harassment. However, the Seminary subsequently informed Godfrey and Kile that its sexual harassment policy does not apply to Miller since he was a public tenant, not a member of the Seminary community.

The New Jersey Supreme Court's Legal Analysis

After discussing Godfrey and Kile's allegations in detail, the New Jersey Supreme Court noted that the standards for considering cases relating to harassment in a place of public accommodation are the same as the standards used to prove harassment in the employment law context. Specifically, to prove sexual harassment in an employment law case, an employee must show that the conduct was severe or pervasive enough to make a reasonable woman believe that her work environment is hostile or abusive. To evaluate whether that standard has been met, a Court must consider (1) the frequency of the conduct, (2) the severity of the conduct, (3) whether the conduct was threatening or humiliating, or merely offensive; and (4) whether the conduct unreasonably interfered with the employee's job performance. In addition, the conduct must be considered cumulatively, instead of looking at each incident individually, since it is typically the impact of many relatively small acts that create a hostile work environment. That evaluation must be objective, meaning it must be viewed from the prospective of a reasonable woman, not from the subjective prospective on the woman who experienced the harassment.

Applying those legal standards to the facts of the case, the New Jersey Supreme Court ruled that Miller's actions toward Godfrey and Kile were not severe or pervasive enough to be legally actionable sexual harassment. Among other things, the Court considered the fact that there were a limited number of encounters that occurred over a period of years, and that neither of the women told Miller they had no interest in him romantically or otherwise, and neither woman told him to leave her alone. The Court refused to consider the fact that the plaintiffs each felt Miller's behavior was strange and distressing, or that they considered him to be stalking them, since those reactions are subjective opinions and the law requires an objective evaluation of the evidence.

Notably, and perhaps most clearly explaining why the New Jersey Supreme Court found Miller's behavior did not constitute unlawful sexual harassment is the following passage it quoted from the Appellate Division's previous decision dismissing the case:

Miller's repeated and unwelcome behavior was one of the socially uncomfortable situations that many women encounter in the course of their lives when someone in whom they are not interested persists in trying to persuade them otherwise. In our view, Miller's persistence did not cross the line and become actionable harassment.

In other words, the New Jersey Supreme Court apparently felt that, although Miller's actions might have been unpleasant and unwelcome, merely being persistent in asking someone out on dates does not constitute sexual harassment.

The lawyers of our employment law and civil rights law firm, The Nirenberg Law Firm, LLC, are experienced at representing employees in New Jersey, New York State, and New York City whose employment law rights have been violated.

If you have experienced workplace discrimination, harassment, or retaliation, a breach of your employment contract, or another violation of your employment law rights, you might want to meet with an experienced employment lawyer to discuss your employment law rights. But what should you bring to your initial consultation with an employment lawyer? The answer varies depending on the type of case you have. For example, someone with a wrongful discharge case would probably want to bring different documents to the meeting than someone who is looking to enhance a severance offer. The following are some of the most important documents a client might want to bring to the first meeting with an employment lawyer.

Chronology or Timeline

In most cases, it is helpful to prepare a chronology or timeline of the relevant events for your employment lawyer. Generally, the chronology should be brief -- in most instances between 1 and 3 pages. It should list the most important events relating to your employment issue, and identify the names and job titles of the people involved in those events. When possible, the chronology should provide the dates of the key events, and ideally should be in chronological order.

Employment Contract or Offer letter

If you have a written employment contract or an offer letter, you should bring a copy of it to your initial consultation.

Employee Handbook

If you have a copy of your company’s employee handbook, or copies of relevant employment policies, you should also bring them with you because they are often relevant to employment law cases.

Key Documents Supporting Your Legal Claims

You should also bring the key documents that you believe support your legal claim. For example, in a sexual harassment case you should bring any documents that show that you were harassed, such as harassing emails, memos, or pictures. Likewise, in a discrimination case you should bring documents that help prove you have been the victim of unlawful discrimination.

Documents or Information About Your Economic Losses

If you have experienced an economic loss, such as lost salary, commissions, or bonuses in a wrongful termination case, you should bring documents or information that show your economic loss.

Severance Agreement

If you have been fired and were offered a severance agreement, then you should bring a copy of it with you to your initial consultation. You should also bring a copy of the company’s severance policy if you have it.

Anything Else You Think May be Helpful

It usually does not hurt to bring additional documents that you think will help your case, as long as you can find the most important documents, like the ones described above, relatively easily. However, that does not mean your lawyer will want or need to review those documents during your initial consultation. Remember, the purpose of the consultation is to get an overview and initial assessment of your case.

An Open Mind

Perhaps the most important thing to bring to an initial consultation with an employment lawyer is an open mind. For example, many clients go to an employment attorney wanting to sue right away. While that might be the right thing to do in some cases, there are often other options to consider before suing, such as trying to negotiate a severance package or exploring a settlement before suing.

Note: It usually is not a problem if you do not have some, or even any, of the documents listed above. While these documents can be helpful, you do not necessarily need any particular document to pursue an employment law case.

If you work in New York or New Jersey, then contact The Nirenberg Law Firm for more information about your employment law rights, or to schedule an initial consultation with an experience employment lawyer.

From the standpoint of employees, random drug testing policies can be invasive, offensive, and a violation of their right to privacy. For example, drug testing can reveal information about an employee’s medical condition or prescribed medication, even when the employer has no legitimate right to that information. In contrast, from the standpoint of a private company, random drug testing can be an effective tool to limit workplace accidents, theft, and poor job performance.

Given those competing interests, when determining whether a private company’s random drug testing policy is an impermissible invasion of privacy, New Jersey law requires a balance between the employee’s privacy interests against the public interest being advanced by the employer. In New Jersey, an employee who is fired for refusing to participate in a private company’s random drug testing program may have a legal claim for wrongful discharge in violation of public policy if the employee was fired for refusing to submit to random drug testing and the employee’s privacy interest outweighs the public interest in favor of the testing.

Determining if the public interest outweighs the right to privacy for a particular random drug testing program is a difficult question. To make that determination, a court has to balance the employee’s right to privacy with employer’s reason for testing. For example, the New Jersey Supreme Court has found that if an employee’s duties are “so fraught with hazard that his or her attempts to perform them while in a state of drug impairment would pose a threat to co-workers, to the workplace, or to the public at large, then the employer must prevail.” Hennessey v. Coastal Eagle Point Oil Co., 129 N.J. 81 (1992). Some of the factors used to determine the public policy interest in favor of testing include whether there is any evidence of drug use by employees, the potential dangers of the employee’s job, how long the drug testing program has been in place, and whether the employer can effectively detect drugs without testing, such as by having supervisor observe employee behavior.

While not legally mandated, the New Jersey Supreme Court has strongly recommended that employers that have random drug testing programs should take steps to minimize the intrusiveness of the process. This includes making sure the testing procedures allow employees to maintain as much privacy and dignity as possible, and that employers announces the program to their employees in advance, provide details about the method for selecting employees to be tested, warn employees of the lingering effect of certain drugs, explain how the testing and analysis will be conducted, warn employees of the consequences of testing positive or refusing to take the test, only conduct tests necessary to determine the presence of drugs in the urine, and take measures not to disclose any information obtained as a result of the testing.

In short, while New Jersey law recognizes that random drug testing can be an invasion of privacy, testing is permitted if that privacy right is outweighed by the public interest supporting the testing. While in some instances it may be very clear that drug testing is permissible, such as when an employee operates heavy machinery or drives as part of his job duties, in many instances it is difficult to know whether a private company’s random drug testing program violates your right to privacy. If you believe your company’s random drug program may be a violation of your rights, you should consider contacting an experienced employment lawyer to learn more about your legal rights.

The lawyers at our employment law and civil rights law firm, The Nirenberg Law Firm, LLC, are experienced at representing employees in New Jersey, New York State, and New York City whose employment law rights have been violated.