New Jersey Employment Lawyer Blog

This morning, I was quoted in the Bergen Record about a civil rights lawsuit I recently filed against the Borough of Bogota. Police Officer Regina Tasca alleges Bogota, as well as Police Chief John C. Burke, Captain James L. Sepp, Sergeant Robert Piterski, and Patrolman Jerome Fowler discriminated against and harassed her because she is gay and female. Officer Tasca also alleges the defendants retaliated against her because she spoke out about matters of public concern, and objected to violations of law including her objections to their gender and sexual orientation harassment. Officer Tasca's case was filed in Federal Court in Newark, New Jersey.

As I discussed here last month, Officer Tasca's case has received significant media attention. Since I wrote that article, her case has been the subject of numerous stories including:

• NJ Town Tries to Fire Lesbian Officer for Stopping Cop Beat Down (WPIX News)


• At disciplinary hearing, Bogota officer's attorney criticizes investigation into 2011 incidents (Bergen Record)

• Police video of emotionally disturbed person at heart of Bogota officer's disciplinary hearing (NJ.com)


• Suspended Bogota police officer gets public support (Bogota Bulletin)

Bogota is currently holding a disciplinary hearing in which it is trying to fire Officer Tasca. The hearing is scheduled to resume on May 15, 16 and 17. The hearing is taking place at the Bogota Borough Hall, at 375 Larch Avenue, Bogota, New Jersey.

Continue reading "Nirenberg Law Firm's Discrimination Lawsuit Discussed in Bergen Record" »

Over the past few weeks, one of our clients has been in the news. Specifically, Bogota New Jersey Police Officer Regina Tasca is currently in the middle of a disciplinary hearing that will determine whether she will lose her job. Her hearing has received significant media attention.

Officer Tasca is the only female and the only gay member of the Bogota Police Department. She has retained my firm to represent her in a civil lawsuit based on the fact that Bogota engaged in gender and sexual orientation discrimination and harassment toward her, and retaliated against her in violation of her civil rights and the New Jersey Conscientious Employee Protection Act (CEPA). She is waiting for the outcome of her disciplinary hearing before she files her lawsuit.

On April 18, Officer Tasca was interviewed live on the WPIX morning news for the story Officer Regina Tasca On Being Suspended For Not Lying About Fellow Cops' Actions.

On April 17, 2012 her case was the subject of a story on the WPIX evening news entitled Officer May Be Fired After Stopping Beatdown.

Officer Tasca's hearing has also been the subject of an article in the Bergen Record. Officer Tasca's disciplinary hearing is scheduled to resume on April 24, April 25.

Continue reading "Police Officer Fights Potential Termination and Prepares for Civil Rights Lawsuit" »

Earlier this year, in an unpublished opinion, the Third Circuit Court of Appeals ruled that a trial judge should not have dismissed a lawsuit claiming that his employer fired him in retaliation for speaking about a matter of public concern, in violation of First Amendment. The Third Circuit is a federal court that handles appeals from the United States District Court for the District of New Jersey.

The case, Beyer v. Duncannon Borough, involves Police Officer Eric Beyer's claim that his employer, the Duncannon Borough, fired him in retaliation for expressing his opinion that the Borough should purchase higher velocity weapons for its police officers. Beyer posted comments on the internet and appeared on the Fox local news to express his opinion about purchasing the weapons. Mr. Beyer's claims that Borough officials "openly attacked" him in response to his opinion, called his internet postings inappropriate, and eventually fired him.

Beyer sued, claiming the decision to fire him was retaliation in violation of his right to free speech under the First Amendment to the United States Constitution. The trial court dismissed his case, finding the facts did not support the conclusion that the Borough retaliated against him.

The Third Circuit disagreed, and reinstated Mr. Beyer's case. First, it explained that a public employee's speech is protected by the First Amendment if (1) he spoke as a citizen, rather than in his capacity as an employee, about a matter of public concern, and (2) the government did not have an adequate reason for treating him differently. On the first requirement, it found Mr. Beyer could have been speaking in his capacity as a citizen because he made his internet postings and gave his television interview during his off-duty hours, and used a pseudonym for his internet postings rather than making them as part of his job duties as a police officer. With respect to the second requirement, the court found Mr. Beyer's opinion that the Police Department should have higher velocity weapons could relate to a matter of public concern because it had to do with the safety of the Police Force, which in turn relates to public safety. The Court also considered the fact that Mr. Beyer communicated his opinion publically, using the internet and TV news.

The Third Circuit then concluded that Mr. Beyer's alleged facts supported the conclusion that his employer fired him in retaliation for his speech on an issue of public concern. It noted that employee can prove retaliation based on either (1) very close timing between the employee's legally protected activity and the employer's act of retaliation, or (2) a pattern of antagonism between the employee's protected activity and the employer's act of retaliation. It found that, based on Mr. Beyer's allegations, it was plausible that the Borough had retaliated against him. It therefore ruled that he should have an opportunity to try to prove his claim, and reversed the trial court's decision dismissing his case.

Continue reading "Court Rules Public Employee's Internet Postings Can Be Protected by the First Amendment" »

On November 10, 2010, New Jersey's Appellate Division ruled that a civil service employee can bring a lawsuit alleging that discipline against him was retaliatory even if he did not appeal a Civil Service Commission decision upholding the discipline. In Racanelli v. County of Passaic, James Racanelli sued the County of Passaic, the Passaic County Sheriff's Department, Passaic County's Sheriff, and various other employees. He alleges they harassed him and otherwise retaliated against him in violation of New Jersey's Conscientious Employee Protection Act ("CEPA") because he reported numerous unlawful and inappropriate actions within the Sheriff's Department. For example, he claims they transferred him to work at the county jail even though he was not trained to work there, and fired him in retaliation for his objections.

Mr. Racanelli appealed the County's decision to fire him to the Civil Service Commission ("CSC"). The CSC handles administrative appeals of major discipline brought against permanent civil service employees. In this case, the CSC upheld Passaic County's decision to fire Mr. Racanelli. Mr. Racanelli chose not to appeal that decision to the Appellate Division. Instead, he brought a separate retaliation lawsuit under CEPA. However, the trial court ruled that because Mr. Racanelli did not appeal the CSC's decision upholding the discipline to the Appellate Division, he could not pursue a whistleblower case.

The trial court also found Mr. Racanelli's claims were barred because he did not file a notice of claim under New Jersey's Tort Claims Act. The Tort Claims Act requires that an individual with a personal injury claim against the state, a county, or a municipality must submit a formal notice of claim to the public entity. Failure to file a notice of claim within six months after the injury is generally a bar to bringing a lawsuit against a public entity.

On appeal, New Jersey's Appellate Division disagreed with both of the lower court's rulings. It held that an employee can sue under CEPA even if he did not appeal a Civil Service Commission decision upholding the discipline against him because an employee has "the discretion to pursue his retaliation claim in a judicial forum rather than in the administrative process." This is similar to the decision in Winters v. North Hudson Regional Fire & Rescue, which ruled that a municipal employee can prove retaliation even if the Civil Service Commission upheld the discipline against him. But unlike Winters, the decision in Racanelli is published, meaning it is a binding legal precedent.

The Appellate Division also ruled that the notice of claim requirement of the Tort Claims Act does not apply to CEPA cases. New Jersey Courts have long recognized that, since the Tort Claims Act does not apply to intentional claims, it does not apply to cases under the New Jersey Law Against Discrimination, the anti-retaliation provisions of the Workers' Compensation Act, and other civil rights claims. The Appellate Division applied the same reasoning to conclude that the notice of claim requirement does not apply to CEPA case.

Continue reading "Civil Service Employee's Failure to Appeal Discipline Does Not Bar Retaliation Case" »

New York State law does not require employers to allow employees to take time off for bereavement leave. However, under New York's new funeral and bereavement leave law, when a company does allow employees to take time off for the death of a spouse, or for the child, parent or other relative of their spouse, they also must offer the same bereavement leave to employees for the death of their same-sex committed partner, and for the child, parent or other relative of the employee's same-sex committed partner.

Signed by Governor Patterson on August 31, 2010, this new law is an addition to New York's Civil Rights Law. It defines "same-sex committed partners" as couples that are "financially and emotionally interdependent in a manner commonly presumed of spouses." The law goes into effect today, October 29, 2010.

New York's funeral and bereavement leave law was passed because individuals in same-sex relationships historically have been denied the right to civil marriage, and are often denied the right to bereavement leave to attend the funeral of their partners and their partners' blood relatives. The New York State Senate and Assembly concluded that this failed to recognize the value that any committed relationship contributes to our communities. The Legislature also concluded that "enlightened companies with domestic partnership policies now allow this type of funeral or bereavement leave."

Continue reading "New York Employers Must Provide Same Bereavement Leave to Same-Sex Committed Couples" »

The New Jersey Civil Rights Act provides a remedy for many important civil rights. However, most people are unfamiliar with the New Jersey Civil Rights Act. This article answers some of the most frequently asked questions about the New Jersey Civil Rights Act.

Q. What is the New Jersey Civil Rights Act?

A. The New Jersey Civil Rights Act was passed in 2004. It creates remedies for violations of certain provisions of the New Jersey Constitution, the United States Constitution, and other New Jersey laws.

Q. Which of my rights are protected under the New Jersey Civil Rights Act?

A. The New Jersey Civil Rights Act protects a broad range of legal rights, including freedom of speech, freedom of religion, freedom of association, freedom to petition the government, equal protection of the law, and due process of law. It also creates a remedy for other rights protected by the United States Constitution, the New Jersey Constitution, and other New Jersey laws.

In addition to providing a remedy for violations of those legal rights, the New Jersey Civil Rights Act prohibits anyone from interfering with any of those rights, or attempting to interfere with any of those rights through threats, intimidation, or coercion.

Q. Can I file a lawsuit under the New Jersey Civil Rights Act?

A. You can file a lawsuit under the New Jersey Civil Rights Act only if the person who violated your rights was acting "under color of law." That basically means the person who violated your rights was working for, or acting on behalf of, the local, state, or federal government.

Q. Does the New Jersey Civil Rights Act still protect me if my civil rights were violated by someone who was not acting on behalf of the state, local, or federal government?

A. Yes. However, you cannot file your own lawsuit. Instead, you can file a claim under the New Jersey Civil Rights Act with New Jersey's Attorney General. The Attorney General then has the option to bring a civil lawsuit on your behalf.

Q. What are the remedies available to me if I win a case under the New Jersey Civil Rights Act?

A. You can recover damages to compensate you for the harm caused by the violation of your civil rights, potentially including lost salary and benefits, and damages for emotional distress. You also can recover your attorney's fees and legal costs. In addition, the person or government entity that violated your civil rights can be required to pay a civil penalty to the State of New Jersey.

To learn more about your rights under the New Jersey Civil Rights Act, contact an experienced New Jersey employment law and civil rights attorney.

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 pocess 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 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.

What is a Disparate Impact Case?

A disparate impact case is one in which an employee claims the employer's policy has an unequal negative impact based on an unlawful reason. Unlawful factors include race, national origin, gender, age, pregnancy, and disability, among others.

For example, an employer might use a test to decide which employees it hires or promotes. Even if the employer has no intent to discriminate, the test might disproportionately select fewer employees in a legally protected group. For example, if a significantly lower percentage of African-American or Hispanic job candidates are hired or promoted based on the test results, then the test might be considered to have a disparate impact based on race. A job criteria that has a disparate impact based on an illegal factor violates the law unless the company can prove it has a "business necessity" for using the criteria.

In Lewis v. City of Chicago, the Supreme Court discussed the filing deadline for a disparate impact case. As a starting point, the Court noted that federal law requires employees to file a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC) within either 300 days after the discrimination occurred. Otherwise, the employee's claim will be dismissed. (Note: in some states the EEOC filing deadline is only 180 days).

Other anti-discrimination laws have different filing deadlines. For example, the New Jersey Law Against Discrimination has a 2 year statute of limitations, and both the New York Human Rights Law and the New York City Human Rights Law have 3 year statutes of limitations.

The Lewis Case

Lewis v. City of Chicago involves the Chicago Fire Department. The Department used a written exam to decide which job candidates it hired. The test undisputedly had a disparate impact against African-American job candidates. Six African-American job applicants filed Charges of Discrimination with the EEOC.

Each of the Charges of Discrimination was filed more than 300 days after Chicago announced how it planned to use the test results. However, Chicago continued to use the test results to hire job candidates for the next six years. At least one of the employees filed a Charge of Discrimination within 300 days after the Department hired a job candidate based on the test results. Accordingly, the trial court found that the Charge of Discrimination was timely.

After a trial, the Court found the test had a disparate impact on the basis of race. It also ruled that the employer did not prove a business necessity for the test. As a result, it ordered the Fire Department to hire 132 African-American employees who had applied for jobs.

On appeal, the Seventh Circuit Court of Appeals reversed. It found the Charge of Discrimination should have been filed within 300 days after the City announced how it planned to use the test results. As a result, it dismissed the case.

But the Supreme Court disagreed, and reinstated the trial judge's ruling. It found there was a continuing violation, and the Charge of Discrimination was filed on time because it was filed within 300 days after the City used the test results to make a hiring decision. As a result, it reversed the Seventh Circuit's decision.

Today, a new employment law, the New Jersey "Emergency Responders Employment Protection Act," goes into effect. The new law makes it illegal for employers to fire or suspend an employee who fails to report for work because (1) the employee is actively engaged in responding to an emergency alarm, or (2) the employee is serving as a volunteer emergency responder during a state of emergency declared by the President of the United States or the Governor of New Jersey. The law defines volunteer emergency responder as members of volunteer fire companies, first aid squads, rescue squads, ambulance squads, and county or municipal Office of Emergency Management, whose official duties include responding to fires or other emergency calls.

A volunteer emergency responder must meet two additional requirements to be protected by this law:

(1) at least one hour before they are scheduled for work, they must provide notice to their employers that they are providing emergency services in response to an emergency alarm or a state of emergency; and

(2) when they return to work, they must provide their employers a copy of the incident report and a certification from the incident commander or official in charge. The certification must confirm that the volunteer emergency responder was actively engaged in, and necessary for, providing emergency services. The certification also must indicate the date and time at which the volunteer emergency responder was relieved from emergency duty.

The new law allows volunteer emergency responders to use any available vacation or sick days to get paid for any time they miss from work while they are serving as volunteer emergency responders. Otherwise, it does not require employers to pay emergency responders for any time they miss from work.

The law does not apply to any employee who is deemed an essential employee under a contract or another law.

These new employment rights are in additional to numerous other protections that firefighters, paramedics, and other emergency service employees working in New Jersey already have. For example, they are protected from retaliation by the First Amendment, the Conscientious Employee Protection Act, and the New Jersey Civil Rights Act. They are also protected from discrimination and harassment because of age, gender, disability, race, national origin, veteran status, religion, pregnancy and sexual orientation, among other legally protected categories, under the New Jersey Law Against Discrimination.

Earlier this year, New Jersey became the third state in the country to pass a law entitling employees to be paid during family leaves. New Jersey's Family Leave Insurance law is set to go into effect in just a few weeks. Since the law is brand new, many employees and employers do not fully understand what the law means or what it requires. This article will answer many of the most frequently asked questions about the New Jersey Family Leave Insurance law.

Q. When Does the Family Leave Insurance Law Go Into Effect?

A. On January 1, 2009, New Jersey companies will begin withholding taxes from employee salaries to fund family leave insurance benefits. Starting on July 1, 2009, qualified employees will be entitled to receive state insurance benefits during covered family leaves.

Q. Who is Qualified to Receive Family Leave Insurance Benefits?

A. The New Jersey Family Leave Insurance law applies to all employees who are covered by the New Jersey Unemployment Compensation law. To be qualified for benefits, an employee needs to have worked for at least 20 calendar weeks in New Jersey and either earned at least $143 per week or a total of $7,200 during the 12 months immediately before he or she made a claim for family leave insurance benefits.

Q. For How Many Weeks Can an Employee Receive Family Leave Insurance Benefits?

A. An employee can receive up to six weeks of family leave insurance benefits during a 12 month period. The 12 month period begins on the first day after the employee's initial claim for family leave insurance benefits.

Q. How Much Money Will I Receive If I Qualify For Family Leave Insurance Benefits?

A. An employee's weekly benefits are normally two-thirds of the employee's average weekly income over the eight weeks before the family leave, up to a maximum of $546 per week.

Q. How Much is Family Leave Insurance Going to Cost Me?

A. The cost of Family Leave Insurance is minimal, especially when compared to other taxes. The total withholding for each employee is less than a tenth of a percent of their wages. There is also a maximum annual contribution per person, which will be $26.01 in 2009.

Q. What Types of Leaves Qualify for Family Leave Insurance Benefits?

A. Leaves to bond with a child and leaves to care for a family member with a serious health condition.

Q. What Types of Leaves to Bond With a Child Are Covered by the Paid Family Leave Act?

A. A qualified employee can receive family leave insurance benefits during a leave to bond with a child during the first 12 months after a child is born if the employee is the child's biological parent or the domestic partner or civil union partner of the child's biological parent. Likewise, a qualified employee who adopts a child can use his or her six weeks of family leave insurance benefits to bond with a child during the first 12 months after the adoption.

An employee can use family leave insurance benefits during an intermittent leave to bond with a newborn or newly adopted child, but to qualify for benefits the employee must take the leave in periods of at least seven days at a time, and the employer must agree to the employee's intermittent leave schedule.

Q. What Kinds of Leaves to Care for Family Members with Serious Health Conditions Are Covered by the Paid Family Leave Act?

A. A qualified employee is entitled to use family leave insurance benefits during a leave to care for his or her immediate family member, meaning a parent, child, spouse, domestic partner, or civil union partner who has a serious health condition. Those benefits can be used for six consecutive weeks, six intermittent weeks, or for 42 intermittent days during the 12 months after the claim.

Q. What Notice Must I Give Before I Can Receive Family Leave Insurance Benefits?

A. An employee who plans to seek family leave insurance benefits must give his or her employer reasonable advanced notice of the leave. Exactly how much notice is required varies based on the circumstances. For example, an employee who intends to seek benefits during an intermittent family leave must give a minimum of 15 days notice before the leave, and an employee who plans to seek benefits during a leave to bond with a newborn or newly adopted child must give his or her employer thirty days notice before the leave.

Q. Does the Family Leave Insurance Law Entitle Me to Take a Family Leave

A. No. The New Jersey Family Leave Insurance law only provides monetary benefits. It does not entitle employees to take family leaves. However, many employees are already legally entitled to those rights under the New Jersey Family Leave Act (NJFLA) or the Family and Medical Leave Act (FMLA).

Q. Does the Family Leave Insurance Law Entitle Employees to Return to Their Job?

A. No. However, some employees are guaranteed to be returned to their job or an equivalent one under the New Jersey Family Leave Act (NJFLA) or the Family and Medical Leave Act (FMLA).

Q. Are There Any Other Limits on an Employee's Right to Receive Family Leave Insurance Benefits?

A. Yes. There are many other limits to an employee's rights to receive family leave insurance benefits. For example, employees ordinarily do not receive family leave insurance benefits during the first seven days of a family leave. In addition, among other limitations, an employee cannot receive family leave insurance benefits:

• While receiving disability benefits or paid sick leave;
• While the employee is receiving unemployment insurance benefits;
• While the employee is receiving full salary or paid time off;
• When the employee is working;
• During the first 14 days after the employee's last day of work, unless the family leave started while the employee was still employed.
• While the family member for whom the employee is caring is not under the care or supervision of a health care provider;
• While the employee is out of work due to a labor work stoppage, such as a union strike; or
• After the employee is fired for gross misconduct related to a crime under New Jersey law.

A. Yes. Employers can require employees to use up to two weeks of paid sick leave, vacation time, or other paid leave time toward their annual family leave insurance benefits entitlement.

The employment lawyers at The Nirenberg Law Firm are dedicated to enforcing the employment law and civil rights of employees in New York and New Jersey.