New Jersey Employment Lawyer Blog

It is my pleasure to discuss one of my own employment law cases that was recently decided by New Jersey's Appellate Division, Winters v. North Hudson Regional Fire & Rescue. On August 30, 2010, the Appellate Division ruled that my client, Steven J. Winters, can proceed with his retaliation case against the North Hudson Regional Fire & Rescue ("NHRFR").

Mr. Winters is a former NHRFR Fire Captain. He alleges the NHRFR, its Fire Chief, and its two co-Directors harassed, suspended, demoted, and eventually fired him in retaliation for his objections in which he discussed dangerously inadequate fire coverage and inoperable fire radios in the department, sexual harassment by an NHRFR Battalion Chief, and fraudulent and criminal conduct by the NHRFR's Fire Chief and co-Directors. Mr. Winters sued the NHRFR for retaliation in violation of the New Jersey Conscientious Employee Protection Act ("CEPA") and the First Amendment.

The NHRFR asked the Appellate Division to dismiss Mr. Winters' case because New Jersey's Civil Service Commission had previously upheld the NHRFR's decisions to suspend, demote, and fire Mr. Winters. The Civil Service Commission is a New Jersey state agency responsible for ruling on appeals of disciplinary charges brought against state, county and municipal civil service employees. On appeal, the NHRFR argued that the discipline it issued to Mr. Winters could not be retaliatory since the Commission upheld it.

But the Appellate Division disagreed. It ruled that even though the Commission had affirmed the discipline, the NHRFR still could have retaliated against Winters, since an employer can have more than one reason for disciplining an employee. Since Mr. Winters has both direct and indirect evidence that the NHRFR disciplined him in retaliation for his legally protected speech, the Appellate Division ruled that a jury should decide whether his legally protected speech and objections made a difference in the NHRFR's decisions to discipline him.

The Appellate Division's decision in Winters is unpublished, meaning it is not a legally binding precedent. The NHRFR is in the process of asking the New Jersey Supreme Court to consider an appeal of the Appellate Division's decision.

Continue reading "New Jersey Court Rules Municipal Employees Can Prove Retaliation Even If Civil Service Commission Upheld Discipline" »

On June 29, 2010, the Court of Appeals for the Second Circuit, a federal appellate court which handles federal appeals from New York, ruled that a supervisor's death threats to an employee can be evidence to support a sexual harassment case. The case, Kaytor v. Electric Boat Corporation, involves Sharon Kaytor's allegations that her boss, Daniel McCarthy, sexually harassed her. Some of Ms. Kaytor's allegations are sexual in nature. For example, she claims Mr. McCarthy complimented her clothing, told her she looked good for a woman her age, stared at her body, leered at her, made it clear he "had designs" on her, told the entire office she had a "flat ass," gave her a pussy willow bush as a gift for Administrative Professional's Day, said she was about to "spread her legs" for her doctor, and referred to her upcoming appointment with her gynecologist as "going where every man wanted to be." But some of Ms. Kaytor claims are not sexual at all, and have no obvious connection to the fact that she is a woman. Specifically, she claims McCarthy told her he wanted to choke her and that he wanted to see her in a coffin, at least six times each.

The trial court dismissed all of Ms. Kaytor's claims before her case could get to a trial, finding she had not proven the sexual harassment was severe or frequent enough to create a hostile work environment. It did so partially because it did not count the death threats as part of her sexual harassment claim, since they were not sexual in nature. The trial court also dismissed Ms. Kaytor's claim that the company retaliated against her when it transferred her to work for another supervisor the day after she complained to the Human Resources (HR) department about the harassment, and in that new position took away some of her job responsibilities, gave her very little work to do, changed her work hours, isolated her, and repeatedly summoned her to unnecessary meetings with HR after she complained to HR about the sexual harassment.

But the Second Circuit disagreed. It ruled that although an employee with a sexual harassment claim must prove the harassment was based on her gender, the harassment does not necessarily have to be based on sexual desire. As a result, although Mr. McCarthy's death threats were not sexual and did not refer to Ms. Kaytor's gender, when considered together with all of the other evidence of sexual harassment, a jury could find he threatened her because she is a woman. The Court reached this conclusion even though Mr. McCarthy also threatened to choke a male employee, since otherwise a male employee could get away with sexual harassment by occasionally harassing male workers even though his real targets are women.

The Court also found that Ms. Kaytor should have an opportunity to prove her retaliation claim. It ruled that a jury could find that the company, in effect, demoted her when it reassigned her work and reduced her job responsibilities right after she complained to HR. A demotion can be retaliatory, even when it does not lower an employee's salary or job title, if it is bad enough to discourage other reasonable employees from coming forward with discrimination or harassment claims. As a result, the appellate court concluded that although the company claims it transferred Ms. Kaytor to separate her from her manager while it was investigating her sexual harassment claim, a jury could find that the company was harassing her. Accordingly, the Second Circuit sent Ms. Kaytor's case back to the lower court, for a trial.

Continue reading "Federal Court Rules Death Threats Can Support Sexual Harassment Claim" »

On July 21, 2010, President Obama signed into law the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010. Among its numerous provisions, the new law contains important economic incentives and legal protections for certain financial whistleblowers. As a result, it creates new employment law rights for employees in both New York and New Jersey.

New Economic Incentives for Whistleblowers
With some limited exceptions, if a whistleblower brings new information about a violation of the Dodd-Frank Act to the attention of the Securities and Exchange Commission ("SEC"), and the SEC recovers a monetary sanction of more than $1 million, then the whistleblower will receive between 10% and 30% of the sanction the SEC receives. In deciding the percentage the whistleblower will receive, the SEC is required to consider: (1) how significant the whistleblower's information was to the successful recovery; (2) how much assistance the whistleblower (and any lawyer representing the whistleblower) provided to the SEC; (3) the benefit of deterring employers from future violations of the Dodd-Frank Act by giving financial incentives to whistleblowers; and (4) other relevant factors the SEC will establish through rules and regulations.

New Legal Protections for Whistleblowers
The Dodd-Frank Act also prohibits retaliation against whistleblowers. Specifically, it makes it unlawful for employers to fire, demote, suspend, threaten, harass, or otherwise discriminate against a whistleblower with respect to the terms and conditions of a whistleblower's employment because he or she provided information to the SEC under the Act, or assisted with an SEC investigation or legal action relating to information the whistleblower provided to the SEC under the Act. An employee who experiences prohibited retaliation can sue to seek his job back with full seniority (reinstatement), past lost wages, and compensation for any special damages sustained as a result of the discharge or discrimination, including attorneys' fees, expert witness fees, and other litigation costs.

Limitations Against Employees Waiving Their Rights
The Dodd-Frank Act also prohibits employees from waiving their rights under it, by making any employment policy or agreement that tries to waive an employee's rights under the Dodd-Frank act unenforceable. Similarly, any agreement requiring an employee to arbitrate his claim under the Act is unenforceable.

The whistleblower protections of the Dodd-Frank Act go into effect in July 2011. However, other laws already protect employees who blow the whistle in New York and New Jersey. For example, the federal government, New York and New Jersey each have False Claims Acts which allow some whistleblowers who identify fraud against the federal or state government a chance to receive a portion of any money the government is able to recover. In addition, the federal Sarbanes-Oxley Act, the Whistleblower Protection Act of 1989, and New Jersey's Conscientious Employee Protection Act (CEPA) are a few examples of laws which protect whistleblowers from retaliation. If you are a whistleblower working in New York or New Jersey and have experienced harassment or other retaliation as a result, you should consider speaking to a whistleblower lawyer who can help protect your rights.

On July 28, 2010, New Jersey's Appellate Division ruled that a former employee of the Atlantic City Board of Education could proceed with his lawsuit. Even though the decision in Clarke v. Atlantic City Board of Education is not a legally binding precedent, it is noteworthy because it recognizes that a few relatively minor discriminatory actions potentially can be enough to prove a harassment claim.

The case was filed by Melvin Clarke, who had been an Assistant Superintendent for the Board of Education. He has a disability which limits his ability to walk, and as a result uses a power scooter and a cane. In February 2002, he filed a disability discrimination lawsuit against the Board and two of its employees. As part of a settlement of that case, the Board agreed to give Mr. Clarke a raise of $5,000 per year, and guaranteed his annual salary would remain at least $5,000 higher than the other Assistant Superintendents in the School District.

In June 2006, Mr. Clarke sued the Board again, this time alleging both retaliation and disability discrimination. The trial court dismissed his claim, finding he did not allege an "adverse employment action." To win in an employment discrimination case, an employee must show he suffered an adverse employment action, such as being fired or demoted because of his or her age, race, gender, disability, or another legally protected category.

As the Appellate Division explained, an adverse employment action has to be serious enough to alter the employee's compensation, terms, conditions, or privileges of employment, deprived the employee of future job opportunities, or had another significant negative effect on his or her job. Examples include being fired, demoted, suspended, passed over for a promotion, forced to resign, or harassed. Harassment is when a company subjects an employee to many separate but relatively minor actions, each of which might not be actionable on its own, but when combined, make up a pattern of discrimination or retaliation conduct.

The Appellate Division reversed the trial court's decision because it found Mr. Clarke's allegations, if true, could establish a hostile work environment harassment claim. His relevant allegations included the fact that the Board (1) moved his office to the sixth floor of the building and further from a bathroom, even though he has difficulty walking, and did not relocate his office after he was stranded on the sixth floor during a fire alarm; (2) refused to develop a plan to provide reasonable accommodations for his disability; and (3) violated his settlement agreement by failing to keep his salary at least $5,000 more than the other Assistant Superintendents. Since the appellate court found Mr. Clarke's allegations could be enough to prove a harassment claim, it sent his case back to the trial court to give him a chance to prove his case.

The question of whether a particular situation is bad enough to be a legally actionable harassment is very fact specific. It depends on factors such has how frequently the harassment happens, how severe the harassment is, and who is committing the harassment.

Continue reading "New Jersey Court Allows Harassment Claim Based on Relatively Minor Acts" »