New Jersey Employment Lawyer Blog

Title VII of the Civil Rights Act of 1964 is a federal law that prohibits employers from harassing and otherwise discriminating against employees based on their race, national origin, color, religion, and sex. Under Title VII, when a supervisor harasses an employee, the company often has a defense if it can prove (1) it used reasonable care to prevent and promptly correct harassment, such as by having an anti-harassment policy, and (2) the employee unreasonably failed to take advantage of an opportunity to stop the harassment, such as by not objecting to it under the company's anti-harassment policy. This defense is often referred to as the Faragher/Ellerth defense, based on the names of the two United States Supreme Court cases that created it.

But would it be reasonable for an employee to complain to the harasser, and nobody else? According to Second Circuit Court of Appeals, the federal appellate court which handles appeals from New York, whether that is reasonable depends on the circumstances of the case.

Specifically, in Gorzynski v. JetBlue Airways Corp., crewmember Diane Gorzynski claims her former employer, JetBlue Airways Corporation, subjected her to sexual harassment. She says her supervisor, James Celeste, sexually harassed her by making massaging gestures with his hands; saying he wanted to massage breasts; indicating he wanted to suck on a particular woman's breasts; telling a crewmember that his wife was going to a "sex toy" party; asking another female crewmember if she had "gotten enough loving" over the weekend; announcing that Ms. Gorzynski had been a table dancer in the past; announcing that another female crewmember was a former pin-up girl; grabbing Ms. Gorzynski and other female crewmembers around the waist; attempting to tickle Ms. Gorzynski and other female crewmembers; looking at women as if he were mentally undressing them; and frequently making inappropriate sexual comments and gestures at work. The Second Circuit recognized that Mr. Celeste's behavior could have created a sexually hostile work environment for Ms. Gorzynski.

JetBlue has a formal sexual harassment policy, which is included in its employee handbook. Under that policy, if a crewmember believes she has been the victim of sexual harassment, she is required to tell her immediate supervisor, the Human Resources Department, or another member of management about it. In accordance with that policy, Ms. Gorzynski repeatedly objected to Mr. Celeste about his sexual harassment. However, she did not complain to anyone else when he continued harassing her. Ms. Gorzynski explained that she did not complain to anyone else because the other supervisor in her office was not receptive to her complaints about other problems at work, and the Human Resources Department had retaliated against another employee who complained about discrimination at work.

Initially, the United States District Court for the Western District of New York dismissed Ms. Gorzynski's sexual harassment claim, ruling that she was unreasonable because she did not complaint about the harassment to another supervisor or JetBlue's Human Resources Department.

However, the Second Circuit disagreed. It ruled that a jury has to decide whether Ms. Gorzynski acted reasonably under the circumstances. In doing so, it recognized "the courage it takes to complain about what are often humiliating events and the understandable fear of retaliation that exists in many sexual harassment situations." It held that it depends on the circumstances of each individual case whether it was unreasonable for an employee not to complain to someone else if the harassment continues after her first complaint. It concluded that a jury could find that under the circumstances it was reasonable for Ms. Gorzynski not to have objected to anyone other than the harasser about the harassment.

Sexual harassment at work violates New Jersey, New York, and federal employment laws. It can be very difficult to decide whether and how to object about sexual harassment at the workplace. If you have experienced sexual harassment or another violation of your employment law rights, you should consider contacting an experienced employment law attorney to discuss your options.

Earlier this year, the United States Supreme Court ruled that an employee can pursue a retaliation claim under Title VII of the Civil Rights Act of 1964 based on being fired because his fiancée objected to discrimination by the same employer. Title VII is a federal law that prohibits employment discrimination based on gender, race, color, and national origin. It also prohibits employers from retaliating against employees who object to discrimination that violates Title VII.

Eric Thompson and his fiancée, Miriam Regalado, both worked for North American Stainless, LP (NAS). Ms. Reglado filed a claim of sex discrimination against NAS with the Equal Employment Opportunity Commission (EEOC). NAS fired Mr. Thompson three weeks after it learned that Ms. Reglado had filed her discrimination claim. Mr. Thompson eventually sued NAS, alleging it retaliated against him by firing him because his fiancée had filed a discrimination claim against it.

The District Court dismissed Mr. Thompson's case, ruling that Title VII does not permit third party retaliation claims. That decision was affirmed on appeal. But in Thompson v. North American Stainless, LP, the United States Supreme Court disagreed, and instead ruled that Mr. Thompson has a valid retaliation claim under Title VII because "a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired."

The Supreme Court decided not to set a bright line rule on what type of personal relationship is enough to claim that a company retaliated against am employee based on someone else's legally protected activity. It noted that a close family member will almost always meet the standard, but left open whether retaliation against an employee's girlfriend, boyfriend, close friend, or trusted co-worker would be protected.

The United States Supreme Court's decision in Thompson is similar to the New Jersey Supreme Court's 1995 ruling in Craig v. Suburban Cablevision. Craig holds that the anti-retaliation provision of the New Jersey Law Against Discrimination prohibits an employer from retaliating against an employee's close friends and relatives who work for the same company, since otherwise employers could discourage employees from complaining about discrimination by threatening, intimidating, or otherwise harming their friends or family.

Continue reading "Supreme Court Finds Retaliation Against Employee's Fiancee Violates Federal Anti-Discrimination Law" »

Recently, the United States Court of Appeals for the Second Circuit Court recently ruled that an employee who follows his supervisor's instruction to falsely report that he did not work any overtime hours still can pursue an overtime claim. It reversed a decision from the Western District of New York, which had dismissed the claim because it did not believe the employee could prove how many hours of overtime he had worked.

Greg Kuebel was a Retail Specialist for Black & Decker (U.S.) Inc. He filed class action lawsuit against Black & Decker, claiming the company's overtime pay practices violate the Fair Labor Standards Act (FLSA) and the New York Labor Law (NYLL). Specifically, Mr. Kuebel claims Black & Decker violated the law by failing to pay him for the overtime hours he worked but did not record on his timesheet -- in other words, his "off-the-clock" overtime hours.

Black & Decker's official policy required Retail Specialists to accurately record their hours on timesheets that they submit to their managers. There was no official Black & Decker policy which prohibited Retail Specialists from working, recording, or being paid for overtime. However, Black & Decker expected its Retail Specialists to finish their work in a 40-hour work week.

Mr. Kuebel alleges it was impossible to finish all of his work in 40 hours per week, and as a result often worked overtime. However, he did not list any overtime on his timesheets, and therefore was not paid for his overtime hours. Mr. Kuebel explained that he falsified his timesheets because his supervisors instructed him not to record more than 40 hours of work per week because the company could not afford overtime. Mr. Kuebel testified that to the best of his memory he worked more than 40 hours almost every week, and averaged between 1 to 5 hours of overtime per week. After Mr. Kuebel told his supervisor that he had been falsifying his timesheets, Black & Decker fired him for poor performance, dishonesty, and falsification of company records.

In Kuebel v. Black & Decker Inc., the Court explained that to prove an overtime case under the FLSA, an employee has to prove he was not properly paid for working more than 40 hours in a work week, and his employer either actually knew it or should have known about it under the circumstances. To prove the amount of overtime pay to which he is entitled, an employee needs enough evidence to show the amount and extent of the overtime he worked. However, he does not have to prove the amount of overtime he worked with definiteness, and can prove his overtime hours through an inference. Accordingly, the Court ruled that when a company's time records are inaccurate or inadequate, the solution is not to penalize the employee by denying him any legal recovery.

To summarize, an employee can win an overtime case if (1) he proves he actually worked overtime and was not properly paid for it, and (2) he has enough evidence to show how much overtime he worked through a reasonable inference. An employee can meet this burden through estimates based on his own recollection. This can be true even when the employee admittedly falsified his own timesheets, at least where the employee's falsification was based on an instruction from a manager or supervisor. That is because it is the employer's duty to maintain accurate time records for its employees, and employers cannot delegate that duty to their employee. Once an employer knows or has reason to know an employee is working overtime, it cannot deny compensation simply because the employee failed to properly record or claim his overtime hours.

Continue reading "New York Employees Can Prove Overtime Claim Even if They Falsely Recorded Working No Overtime" »

On June 20, 2011, in a closely watched employment law case, the United States Supreme Court ruled that a group of approximately one-and-a-half-million female employees of Wal-Mart could not bring a class action gender discrimination lawsuit against the company. Specifically, in Wal-Mart Stores, Inc. v. Dukes, the Supreme Court found the women's claims were not similar enough to each other to proceed as a class action. It reached that conclusion because the alleged discriminatory decisions were made by hundreds of different managers throughout the country, and were not based on a uniform corporate policy.

Three women, Betty Dukes, Christine Kwapnoski, and Edith Arana filed the lawsuit. They alleged that Wal-Mart gave its local store managers broad discretion to make salary and promotional decisions, the managers used that discretion to discriminate against women, and the company knew about the discrimination but did nothing to stop it. The women claim this is discrimination on the basis of their sex, in violation of Title VII of the Civil Rights Act of 1964. Title VII is a federal law that prohibits employment discrimination due to gender, race, color, and religion.

Class actions are cases in which one or more individuals bring a case on behalf of a much larger group. To bring a class action, the plaintiffs must prove:

1. The class is so large that it is impractical for each plaintiff to sue individually;


2. There are questions of law and fact common to the whole group;


3. The claims of the plaintiffs who filed the lawsuit (the class representatives) are typical of the claims of the rest of the group; and


4. The class representatives will fairly and adequately protect the interests of the whole group.

In the Walmart case, the Supreme Court held that the plaintiffs could not meet the first two requirements because they did not have any evidence that Wal-Mart had a company-wide policy or practice of discriminating against women. The Court found it is not enough to show the company gave broad discretion to its managers, and many or most of those managers abused their discretion by discriminating. Rather, it concluded that since the members of the potential class had been impacted by millions of separate employment decisions made by thousands of different supervisors, it would be impossible to decide all of their claims in a single case. As a result, it ruled that the case cannot proceed as a class action. Instead, it sent it back to the trial court so Ms. Dukes, Ms. Kwapnoski, and Ms. Arana each can try to prove her individual gender discrimination case against Wal-Mart.

Continue reading "Supreme Court Rejects Gender Discrimination Class Action Against Wal-Mart" »