New Jersey Employment Lawyer Blog

A federal judge in New Jersey recently dismissed an employee's disability discrimination claim because she had signed an agreement shortening the statute of limitations to bring employment law claims against her employer. A statute of limitations is the deadline to file a lawsuit. Different legal claims have different statutes of limitations. For example, the New Jersey Law Against Discrimination ("LAD") has a two year statute of limitations, meaning employees working in New Jersey ordinarily have two years to file discrimination lawsuits against their employers under the LAD.

The Facts of the Case

Ann M. Gavin worked for AT&T Services, Inc. She had several problems and pain in her feet and legs that made it difficult for her to walk, including a stress fracture in her right knee, psoriatic arthritis, and pustular psoriasis on her heel. She asked AT&T for permission to telecommute as a reasonable accommodation for her disability. She eventually resigned because the company would not let her work from home five days per week. She then filed a disability discrimination lawsuit under the LAD.

However, in 2007 Ms. Gavin signed an employment application which included a "Waiver of Statute of Limitations for Employment-Related Claims." The waiver says that Ms. Gavin has to file any employment law claims against AT&T within 6 months after she knew or should have known she had a discrimination claim against the company. Her employment application also says it must be interpreted under Illinois law.

The Court's Ruling

Based on the waiver provision in Ms. Gavin's employment application, in Gavin v. AT&T Services, Inc. the District Court dismissed her claim under the LAD because she waited more than 6 months after she resigned to file her lawsuit. Applying Illinois law, the court rejected Ms. Gavin's argument that her employment application was not a contract, even though it expressly says it is not intended to create an employment contract. The Court also ruled that Illinois law does not prevent agreements that shorten a statute of limitations, as long as the shorter period is reasonable.

Fortunately, this decision is not a binding precedent, and does not interpret New Jersey Law. However, it still is concerning since it encourages companies to require employees to shorten the time to file employment discrimination lawsuits. This is a potential problem since employees often have little or no choice but to sign anything the company requires for them to get hired. However, shortening the deadline to bring a discrimination lawsuit would cause many employees to lose their right to file a lawsuit, since they often do not know or remember what they signed when they were hired. It also would discourage employees from trying to negotiate employment law claims before they have to file lawsuits, since they would have much less time to attempt to negotiate.

The Lesson of the Case

It is almost always a good idea to discuss your potential employment law claims with an employment lawyer sooner than later. Even when the statute of limitations is not an issue, there are other advantages to acting quickly. For example, there are sometimes ways to resolve disputes with your company before you get transferred, disciplined or fired. Further, the longer you wait to assert your legal rights, the more likely key witnesses will have moved out of state or their memories will have faded. Contact the Nirenberg Law Firm if you have experienced discrimination, harassment, or retaliation at work in New Jersey or New York.

In a noteworthy unpublished employment law decision, earlier this month New Jersey's Appellate Division upheld a jury award to an employee on a retaliation claim where the primary evidence of retaliation was the fact that the employee's supervisors were unfriendly to him after he complained about discrimination.

Anthony Onuoha, who is African American, worked for Roche Molecular Systems. In 2006, he complained to Roche's management because he believed the company discriminated against him by giving him unfair performance reviews and raises. The company's human resources department investigated his claim, but concluded that his performance reviews and salary were fair.

After Mr. Onuoha complained about discrimination, his supervisors became unfriendly toward him. For example, one supervisor stopped speaking to him. Mr. Onuoha also received an even worse performance review in 2007. Further, the company denied Mr. Onuoha's request to take a two-week vacation after he took a 6-week medical leave, claiming there was too much work.

A few years later, in 2009, Roche chose to include Mr. Onuoha in a reduction-in-force and terminated his employment. He then sued, claiming the company discriminated against him because he is an African American, and fired him in retaliation for his complaint about race discrimination, in violation of the New Jersey Law Against Discrimination (LAD).

After a trial, a jury found that Roche had not discriminated against Mr. Onuoha based on his race. However, it found the company fired Mr. Onuoha in retaliation for the complaint he made about discrimination in 2006. He was awarded $512,000 in economic damages, $250,000 in emotional distress damages, plus $305,653.07 for his attorney's fees and legal costs, for a total judgment of more than a million dollars.

On appeal, Roche argued it was improper for the jury to find Roche retaliated against Mr. Onuoha because of his complaint about discrimination since the jury found the company did not discriminate against him. In Onuoha v. Roche Molecular Systems, the Appellate Division rejected that argument since an employee does not have to win his discrimination claim to prove his employer fired him in retaliation for complaining about discrimination. Rather, an employee only has to prove he reasonably believed in his discrimination complaint, and the employer retaliated against him because he made the complaint.

The appellate court also found there was enough evidence of retaliation to support the jury's verdict, despite the fact that there was a two year gap between his discrimination complaint and the company's decision to fire Mr. Onuoha. It primarily focused on the evidence that Mr. Onuoha's supervisors became unfriendly toward him after he complained about discrimination. The Court also relied on the fact that, although the company could have considered a broader group of employees for potential layoff, it insisted on firing someone from Mr. Onuoha's group. Accordingly, the court affirmed the jury's verdict in favor of Mr. Onuoha.

Continue reading "Court Upholds Employee's Retaliatory Termination Claim Based on Supervisor's Unfriendliness" »

Last month, New Jersey's Appellate Division dismissed an employee's discrimination lawsuit because the New Jersey Division on Civil Rights (DCR) had already dismissed the employee's case. That employee, Francis Cornacchiulo, was a senior vice president for Alternative Investment Solutions. Mr. Cornacchiulo has multiple sclerosis. Alternative fired him after he apparently started experiencing symptoms of his disability at work. He then filed a disability discrimination claim with the United States Employment Opportunity Commission (EEOC). When Mr. Cornacchiulo submitted additional information to the EEOC, he marked a box agreeing to jointly file his claim with the DCR.

The EEOC eventually told Mr. Cornacchiulo it was "unable to conclude that the information establishes a violation of federal law." The DCR then wrote a letter to Mr. Cornacchiulo indicating that since the EEOC had closed its file, it the "a determination has been made" and the DCR was closing its file on the same basis. It did so even though there are important differences between federal and state employment laws, and the DCR had previously informed Mr. Cornacchiulo that, on request, it will review whether the EEOC's conclusions are consistent with New Jersey law.

After Mr. Cornacchiulo received the letter from the DCR, he filed a lawsuit in a New Jersey state court, claiming Alternative fired him because of his disability in violation of the New Jersey Law Against Discrimination (LAD). Several weeks later, the DCR sent a letter to Alternative's lawyer stating it was adopting the EEOC's conclusion and closing Mr. Cornacchiulo's case. However, the agency never told Mr. Cornacchiulo it had adopted the EEOC's conclusion.

Alternative then asked the court to dismiss Mr. Cornacchiulo's lawsuit based on the DCR's finding. In the meantime, Mr. Cornacchiulo's lawyer attempted to withdraw his claim from the DCR.

On June 19, 2012, in Cornacchiulo v. Alternative Investment Solutions, L.L.C., the Appellate Division ruled that Mr. Cornacchiulo could not pursue his disability discrimination claim in court. The court explained that under the LAD an employee has the option of pursuing a discrimination claim either through the DCR or in court. It also noted that when someone files a case with the DCR, he/she has the option of withdrawing it and filing a private lawsuit. However, he/she has to do so before the DCR reaches its final determination. This is different from determinations by the EEOC, which are not considered final and do not bar a subsequent discrimination lawsuit.

Based on its analysis, the Appellate Division found that the lower court properly dismissed Mr. Cornacchiulo's lawsuit. It rejected Mr. Cornacchiulo's arguments based on the fact that he did not realize he had marked the box to file his claim in the DCR, the EEOC's form did not warn him of the potential consequences of jointly filing with the DCR. The court ruled that once the DCR reached its final determination, Mr. Cornacchiulo lost his right to bring a separate lawsuit claiming Alternative fired him because he is disabled. However, he still has the option to appeal the DCR's decision.

The Lesson of the Case

Perhaps the biggest lesson of the Cornacchiulo case is how important it is to speak to an employment lawyer before pursuing your legal rights. For example, although there are some circumstances where it might make sense to pursue a claim through the EEOC or the DCR rather than filing a lawsuit, you should discuss your options with an attorney before you decide which option is best for you.

Continue reading "Discrimination Case Dismissed Because Employee Filed Claim with New Jersey Division on Civil Rights" »

Last month, the United States Supreme Court ruled that sales representatives working for pharmaceutical companies are not entitled to receive overtime pay under the Fair Labor Standards Act (FLSA). The FLSA is a federal law that requires companies to pay employees most of their employees overtime at the rate of one-and-a-half times their normal hourly rate in each week in which they work more than 40 hours.

Pharmaceutical sales representatives do not directly sell products. Rather, they attempt to convince doctors to prescribe their company's products to their patients when appropriate. This process is called "detailing."

At GlaxoSmithKline, sales representatives are paid a base salary plus a commission. Their commissions are based on the total sales of the drugs assigned to them, or the market share in their sales territories. Glaxo does not pay time-and-a-half to its sales representatives when they work overtime. As a result, several salespeople filed a lawsuit claiming they were denied overtime pay in violation of the FLSA.

The issue in the case was whether pharmaceutical sales representatives fall within an exception to FLSA's overtime requirement under which employers do not have to pay overtime to their outside salespeople. In Christopher v. Beecham Corporation DBA GlaxoSmithKline, the Supreme Court ruled that pharmaceutical sales representatives fall within that exception for a variety of reasons. For example, it recognized that the FLSA uses a very broad definition of the term "sales," which includes "any sale, exchange, contract to sell, consignment for sale, shipment for sale, or other disposition." It also concluded that since pharmaceutical sales representatives are not allowed to make direct sales to patients, detailing is the equivalent of sales. Accordingly, it ruled that pharmaceutical sales representatives are not entitled to overtime pay under the FLSA.

Continue reading "Supreme Court Rules Pharmaceutical Sales Representatives Not Entitled to Overtime Pay" »