New Jersey Employment Lawyer Blog
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Earlier this month, the United States Supreme Court ruled that the whistleblower protection of the Sarbanes-Oxley Act applies not only to employees of publicly traded companies, but also to employees of privately held companies who perform work for the publicly traded company as contractors or subcontractors.

Corporate Tax FraudThe Sarbanes Oxley Act is a 2002 law that was passed in 2002 in response to the collapse of Enron Corporation.  It includes an anti-retaliation provision that prohibits public companies, as well as their employees and agents from firing, harassing, demoting, suspending, or otherwise discriminating against employees who blow the whistle on certain activities prohibited by the Act.

The case, Lawson v. FMR LLC, involves the Fidelity family of mutual funds, which has no employees of its own.  The whistleblowers were Jonathan M. Zang and Jackie Hosang Lawson, both of whom were employed by different subsidiaries of the same parent company, FMR LLC.  Their employers are private companies that manage and advise the Fidelity family of mutual funds.

Mr. Zang and Ms. Lawson claim they experienced retaliation after they reported fraud committed by the mutual funds.  Specifically, Mr. Zang claims he was fired and Ms. Lawson claims she experienced a series of adverse employment actions that eventually caused her to resign (a constructive discharge).

In determining whether Mr. Zang and Ms. Lawson are protected by the Sarbanes-Oxley Act, the Supreme Court focused on the relevant language of the anti-retaliation provision, which prohibits any publicly traded company or any “officer, employee, contractor, subcontractor, or agent of such company” from retaliating against an employee who provides information or otherwise assists in certain investigations into possible violations of the Act.  The Court concluded that the plain meaning of this provision prohibits contractors and subcontractors from retaliating against their own employees, rather than merely prohibiting them from retaliating against employees of publicly traded companies.  It supported this interpretation on the basis that normally contractors and subcontractors can only terminate, demote or suspend employees of their own company, rather than employees of the publicly traded companies which they manage.

The Supreme Court further supported its ruling based on the fact that the collapse of Enron involved fraud by its private accounting firm, Arthur Andersen.  The Act was passed in part because employees of Arthur Andersen who reported the fraud experienced retaliation, including demotions and terminations as a result.  The court reasoned that if the whistleblower provisions only protected employees of publicly trades companies, then it would not protect employee of companies like Arthur Anderson who blow the whistle on fraud committed by a public traded company for which they work.  This would thwart the Act’s express purpose of “protect[ing] investors by improving the accuracy and reliability of corporate disclosures made pursuant to the securities laws.”

Accordingly, the Court held that the Sarbanes-Oxley Act’s whistleblower protection applies to individuals who work for publicly traded companies through privately held companies such as law firms, accounting firms and investment companies.  It therefore ruled that Mr. Zang and Ms. Lawson can proceed with their cases.

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The City of Newark recently enacted an ordinance requiring certain employers to provide paid sick leave to their employees.  Newark is now the second city in New Jersey to pass a paid sick leave law.  As discussed in a previous article, effective January 24, 2014, Jersey City Law Requires Employers to Provide Paid Sick Leave.

To Whom Does the Law Apply?

The Ordinance applies to most employees who work in Newark for at least 80 hours per year.  However, it does not apply to the federal, state or local government, or to employees of any school district or Board of Education, including Rutgers University.

How Much Time Off Are Employees Entitled to Take?

Sick Female Employee Taking Paid Time Off From WorkCovered employees are entitled to accrue at least of one hour of paid sick time for every 30 hours they actually work.  Companies are required to provide up to 40 hours of paid sick time per year to any employees who are child care workers, home health care workers, or food service workers.  For other employees, companies with 10 or more employees are required to provide employees up to 40 hours of paid sick time per calendar year, and companies with fewer than 10 employees are required to provide up to 24 hours of paid sick time per year.

Employers must either allow employees to carry over a minimum of four hours of unpaid sick leave to the following calendar year, or pay employees for their unused sick time.  However, employers are not required to permit employees to use more than 40 hours of paid sick time during any given year.

For What Purposes Can Employees Use Their Paid Sick Time?

Employers must permit employees to use the paid sick time they earn for a variety of reasons including but not limited to:

  1. Their employee’s own (a) physical or mental illness, injury or health condition; (b) diagnosis with a physical or mental illness, injury or health condition; or (c) preventive medical care; and
  2. For the employee to care for a family member’s (a) mental or physical illness, injury, or health condition; (b) medical diagnosis of a mental or physical illness, injury, or health condition; or (c) preventive medical care.

The law defines “family member” very broadly to include (1) spouses, civil union partners and domestic partners; (2) natural children, adopted children, stepchildren and foster children of the employee and the employee’s spouse, civil union partner or domestic partner; (3) grandparent and grandparents of the employee’s spouse, civil union partner or domestic partner; (4) grandchildren; and (5) siblings.

What Are the Requirements to Take Time Off?

For emergencies, employers must permit employees to take time off as long as they provide as much advance notice as practical.  For any other unforeseeable sick time, employers can require employees to request the time off before the beginning of their scheduled shifts.  When the need for paid sick leave is foreseeable, employers can require employees to provide up to seven days advance notice.

After an employee uses sick leave three days in a row, the employer can require a doctor’s note showing the need for the time off was covered by the Ordinance.  However, the employer cannot require an explanation of the nature of the illness.

Protection from Retaliation

The Ordinance prohibits retaliating against employees who properly exercise their rights under it.  This includes prohibiting employers from threatening, disciplining, firing, suspending, or taking other adverse actions against employee because they exercise their rights under it.

The statute goes into effect on May 29, 2014.  A copy of the full text is available on the City of Newark’s website.

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Retaliation Green Road Sign on Dramatic Blue Sky with Clouds.

To prevail in a retaliation lawsuit you have to prove your employer took an adverse action (such as demoting or firing you) because you engaged in a legally-protected activity. For example, if your employer fired you after you complained you were not being properly paid for working overtime you would have to prove there was a connection between your complaint and the company’s decision to fire you. This is called a “causal link.”

There are many different ways to prove a causal link in a retaliation case. Some of the most common ways include evidence your employer fired you quickly after you objected, a decision-maker was angry about your objection, or the company’s explanation for firing you is false. A recent New Jersey case, Goldsmid v. Lee Rain, Inc., finds another potential way to prove retaliation: Based on evidence the employer had someone ready to replace you very quickly after it fired you.

Craig Goldsmid worked for Lee Rain, Inc. in Vineland, New Jersey, most recently in the company’s warehouse. Although Lee Rain initially paid him by the hour, in early 2010 it began paying him a salary.

There was no dispute that Mr. Goldsmid was entitled to overtime pay when he worked more than 40 hours per week. However, there were at least 12 weeks in which Mr. Goldsmid worked overtime but was not compensated for it.

Although Mr. Goldsmid initially did not realize he was entitled to receive overtime pay, in February 2011 the company’s accountant provided him a factsheet from the United States Department of Labor that explains the Fair Labor Standards Act (FLSA)’s overtime requirements. Mr. Goldsmid provided copies of that document to some of his coworkers and his boss. In March 2011 he told one of the owners of the company he believed the company had decreased his pay when it started paying him a salary. Approximately three months later, Lee Rain fired Mr. Goldsmid, claiming he was disruptive and his job performance was poor. Mr. Goldsmid then filed a lawsuit claiming his employer failed to pay him overtime in violation of the FLSA, and retaliated against him in violation of the FLSA and New Jersey’s whistleblower law, the Conscientious Employee Protection Act (CEPA).

Lee Rain eventually filed a motion for summary judgment, asking the court to dismiss Mr. Goldsmid’s case. Among other things, the company argued there was not enough evidence to prove it fired Mr. Goldsmid because he objected about a violation of the FLSA, rather than because of his job performance.

Previous cases have recognized that when an employee attempts to rely solely on evidence of the timing between his legally protected objection and the company’s decision to fire him, he has to show the timing is so close that it is “unusually suggestive” of retaliation. Otherwise, timing alone is not enough to prove a retaliation claim.

The judge explained that the three months between Mr. Goldsmid’s complaint to his boss and the company’s decision to fire him was not “unusually suggestive” and therefore was insufficient to prove his case. However, she also noted that the company hired two new employees to work in its warehouse, and started their jobs on the day after Lee Rain fired Mr. Goldsmid. Although the company claimed it decided to hire those employees a month before it fired Mr. Goldsmid because it was getting ready for the busy summer season, the court ruled that a jury could find it really hired them to replace Mr. Goldsmid and delayed firing him until his replacements were ready to start their jobs. Based on that, the judge concluded a jury could find Lee Rain retaliated against Ms. Goldsmid in violation of the FLSA and CEPA. Accordingly, it denied the company’s motion for summary judgment.

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A case decided earlier this month addresses a question that periodically comes up in employment law cases: Will your former employer be able to obtain your personnel file from your current employer if you file an employment discrimination or retaliation lawsuit?

Can My Former Employer See My Current Employment Records As Part of

During an employment lawsuit, the employer and employee engage in a process called discovery. Discovery involves an exchange of information between the parties, including requests for documents, written questions called interrogatories, and oral questions at a deposition. In addition, either side has the right to issue subpoenas requiring non-parties to provide relevant documents and information. The purpose of discovery is to allow each side to gather evidence to support its case and evaluate the other side’s position.

Discovery is supposed to be broad. However, it has limits. For example, it only is supposed to be used to try to learn something relevant about your case, and not to harass or punish the other side. Unfortunately, there often are disagreements about whether a discovery request is being used for a proper purpose. The question of whether your former employer is entitled to obtain copies of records from your current employer is one such issue that can arise during an employment law case.

In Boykins v. Inventiv Commercial Services, Michelle Boykins alleges that her former employer, Inventiv Commercial Services, wrongfully terminated her because of her race in violation of the New Jersey Law Against Discrimination (LAD) and federal law. After Ms. Boykins stopped working for Inventiv she started working for New Jersey Transit. Inventiv learned that Ms. Boykins filed a charge of discrimination against New Jersey Transit with the United States Equal Employment Opportunity Commission (EEOC). Ms. Boykins provided Inventiv a copy of her EEOC claim and other related documents. Inventiv then attempted to obtain Ms. Boykins’s entire personnel filed from New Jersey Transit.

Inventiv claimed these records were relevant to various issues in the case including how much Ms. Boykins is earning from New Jersey Transit since those earnings would offset any economic damages caused by Inventiv’s alleged race discrimination. Ms. Boykins asserted that her personnel records are private. Inventiv argued that it could overcome her workplace privacy concerns because her discrimination claim against New Jersey Transit is similar to her claim against it.

United States Magistrate Judge Douglas Arpert ruled that Inventiv is not entitled to obtain Ms. Boykins’s personnel file from New Jersey Transit. He recognized that employees have a legitimate privacy concern with respect to their personnel files. While he noted that Ms. Boykins’s pending EEOC case against New Jersey Transit might have provided a basis for Inventiv to obtain those records, it already has those documents. He also found Inventiv’s s request was overly broad since it sought Ms. Boyknis’s entire personnel file, rather than particular items that might be relevant to her lawsuit.

It is important to understand that this ruling was very fact-sensitive. The judge might have required New Jersey Transit to provide some records if, for example, Ms. Boykins had not already provided the relevant EEOC records or if she did not supply adequate evidence regarding her salary and benefits at her new job. However, the case recognizes that employees do have a privacy interest in their personnel records and there should be limits on when your former employer is entitled to obtain them from your current employer.

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New Jersey Court Finds Protection for Whistleblower Who Objected as Part of Job Last week, New Jersey’s Appellate Division revisited the question of whether an employee who blows the whistle about an activity related to his job duties can be protected by New Jersey’s Conscientious Employee Protection Act (CEPA). This time, the court concluded the employee can proceed with his claim even though he blew the whistle about an issue related to his job. There is a split in legal authority over this issue. As I discussed in a previous article, New Jersey’s Whistleblower Law Protects “Watchdog” Employees Whose Jobs Require Them to Report Violations of Law, last September another panel of the Appellate Division ruled an employee whose job is focused on corporate safety or compliance issues is protected by CEPA only if he (1) “pursued and exhausted all internal means of securing compliance” or (2) “refused to participate in the objectionable conduct.” In contrast, several previous cases have ruled that employees who object about violations of the law in the course of performing their jobs are not protected by CEPA. The latest case to address this issue is Dukin v. Mount Olive Township Board of Education. Robert Dukin worked for the Mount Olive Township Board of Education as an auto-mechanic. In early January 2010, he told his supervisor about a number of safety concerns about a particular school bus. The next time Mr. Dukin was at work, he saw a bus driver preparing to drive the unsafe bus. After confirming the bus had not been repaired, Mr. Dukin told the bus driver not to drive it. He then reported this to the New Jersey Motor Vehicle Commission’s on-site inspector, who directed Mount Olive to take the bus out of service. Shortly thereafter, Mr. Dukin’s boss ordered him to repair the bus using a bumper-jack. Mr. Dunkin refused because he believed doing so was unsafe because the bus was on uneven ground. His boss then ordered him to go home. At home, Mr. Dukin filed a complaint with New Jersey’s Office of Public Employees Occupational Safety and Health department (PEOSH), which eventually found multiple safety violations. When the Superintendent learned what had happened he fired Mr. Dukin, only to rescind his termination five minutes later. Mount Olive subsequently scheduled a hearing to discuss Mr. Dukin’s employment. Prior to the meeting, Mount Olive offered Mr. Dukin the option of being paid for the final five months of his employment contract if he resigned and waived his legal claims against the school district. Mr. Dukin rejected this offer. Mount Olive permitted Mr. Dukin to finish out the school year, but did not renew his contract for the following year. Mr. Dukin then filed a retaliation lawsuit under CEPA. The Appellate Division found Mr. Dukin is protected by CEPA. It distinguished its previous rulings regarding employees who object in the course of performing their job duties, explaining that unlike Mr. Dukin each of those cases involves an employee whose “central job description was to assess and analyze risk for” their employer. In other words, it establishes a different standard for (1) employees whose jobs focus on safety or compliance, who either have limited or no protection under CEPA; and (2) all other employees, who are protected by CEPA whether or not their objections relate to their job duties. The Appellate Division also found Mr. Dukin has enough evidence to prove retaliation. This includes the fact that his supervisor previously told the mechanics he would “bury” them if they ever went over his head, the timing and circumstances of Mount Olive’s disciplinary actions toward him, and the fact that the school district changed its justification for firing him from budgetary concerns to poor performance. Accordingly, the court concluded that a jury should determine whether Mount Olive retaliated against Mr. Dukin in violation of CEPA. The Dukin opinion is unpublished, so it is not a binding precedent. However, it is a reminder that this question is in a state of flux that will remain until the New Jersey Supreme Court finally answers this question.

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As I discussed in a previous article, in 2010 New Jersey passed a law Prohibiting Companies From Saying Unemployed Job Candidates Need Not Apply. With limited exceptions, this relatively new anti-discrimination law prohibits employers from advertising that job applicants must have a current job to be eligible to be hired, interviewed or considered for a job opening. Earlier this month, a court upheld that law against a challenge from an employer who claimed the law violated its rights under the First Amendment.

Court Upholds New Jersey Law Prohibiting Job Ads Requiring Job Applicants Who Are Currently Employed.jpgThe case was initiated by a company, Crest Ultrasonics, and its Chief Executive Officer, J. Michael Goodson. They had advertised a job opening for the position of Service Manager in a newspaper. The advertisement stated that a job candidate “must be currently employed,” in violation of the unemployment insurance discrimination statute.

Two people complained to the New Jersey Department of Labor (“DOL”) about Crest’s job ad. The DOL investigated and subsequently fined Crest and Mr. Goodson a total of $1,000. Crest and Mr. Goodson challenged the fine, claiming it violated their right to free speech guaranteed by the First Amendment to the United States Constitution and the New Jersey Constitution. The Commissioner of the DOL upheld the fine. Crest and Mr. Goodson appealed.

On appeal, New Jersey’s Appellate Division explained that the First Amendment permits the government to limit commercial speech such as the advertisement at issue if (1) there is a substantial government purpose underlying the law and (2) the law directly advances that interest and is no more restrictive than necessary to advance that interest. The Court found this test was met and therefore concluded the law did not violate Crest or Mr. Goodwin’s right to free speech.

In reaching this conclusion, the Court recognized that the statute was passed during a nationwide recession that had a major impact on New Jersey’s economy, including unusually high levels of unemployment. It found the state has the legitimate interest in encouraging more unemployed job candidates to apply for jobs. It found the law was narrowly tailored to address this concern, particularly since it does not even prohibit employers making hiring decisions from discriminating based on the fact that an individual is not currently employed. At the same time, it found the law promotes the state’s interest by encouraging unemployed job candidates to apply for job openings, since “some currently unemployed applicants will stand out” and will be interviewed and hired by companies that otherwise might have told unemployed job applicants not to apply.

Accordingly, in New Jersey Department of Labor and Workforce Development v. Crest Ultrasonics the Court ruled the statute is narrowly tailored to advance the State’s substantial interest, and therefore does not violate the state or federal Constitution. In reaching its conclusion, the Court considered evidence that the longer an individual is unemployed, the more difficult it is for him or her to find a job. It explained that when employers are unwilling to hire unemployed job candidates, that makes it even more difficult for those individuals to return to the workforce. It also noted that Oregon, the District of Columbia and New York City have passed similar laws over the past several years, and Rhode Island is considering doing the same.

Although the Court upheld the law, it did not decide whether a $1,000 fine was appropriate under the circumstances. It noted that $1,000 is the maximum penalty for a first offense. However, when setting the amount of a penalty the DOL is supposed to consider (1) the seriousness of the violation; (2) the employer’s past history of violations; (3) the employer’s good faith; (4) the size of the employer; and (5) any other relevant factors. Since the Commissioner of the DOL apparently did not consider those factors, the Court sent the case back to the DOL to set the appropriate amount of the fine.

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Yesterday, Governor Christie signed a law that prohibits pregnancy discrimination in New Jersey. The Act, which is an amendment to the New Jersey Law Against Discrimination (“LAD”), adds pregnancy to the list of legally protected categories. Importantly, it defines “pregnancy” broadly to include not only pregnancy itself but also childbirth, medical conditions related to pregnancy or childbirth, and recovery from childbirth.

Thumbnail image for Thumbnail image for Thumbnail image for New Jersey Passes Law Prohibiting Pregnancy Discrimination.jpgThe new law is expressly premised on the fact that “pregnant women are vulnerable to discrimination in the workplace in New Jersey.” It notes that “women who request an accommodation that will allow them to maintain a healthy pregnancy, or who need a reasonable accommodation while recovering from childbirth, are being removed from their positions, placed on unpaid leave, or fired.” Its goal is to eliminate those forms of discrimination from the workplace.

In the past, many court opinions have found pregnancy discrimination to be a form of unlawful gender discrimination. However, not every court has agreed, leaving some uncertainty in the law. This new law removes any doubt that it is unlawful for an employer to treat a woman worse because of her pregnancy or childbirth, and makes it clear that employers cannot treat pregnant women less favorably than their similarly situated coworkers.

This amendment to the LAD also requires employers to provide reasonable accommodations to pregnant employees based on the advice of their physician, irrespective of whether the employee is disabled. It lists examples of potential accommodations as including “bathroom breaks, breaks for increased water intake, periodic rest, assistance with manual labor, job restructuring or modified work schedules, and temporary transfers to less strenuous or hazardous work.” It also makes it clear that companies must offer their pregnant employees at least as much paid and unpaid time off as it provides to comparable employees who are not pregnant.

However, the law makes it clear that employers do not have to provide an accommodation if it can show it would impose an undue hardship on its business. It lists factors to determine whether a particular accommodation would impose an undue hardship as including (1) the overall size of the employer’s business including the number of employees, the number and type of facilities, and the size of budget; (2) the nature of the employer’s operations, including the composition and structure of its workforce; (3) the nature and cost of the accommodation; and (4) the extent to which the company would need to waive an essential job requirement to provide the accommodation. This final consideration seems to imply that, at least under certain circumstances an employer might be required to waive an essential job requirement to accommodate a pregnant employee. If so, this would be significant since employers are not required to waive essential job functions, even temporarily, when providing reasonable accommodations for an employee’s disability or religious belief.

Since the LAD already included a broad anti-retaliation provision, it now prohibits employers from retaliating against employees who complain about pregnancy discrimination in the workplace. In addition, it includes a new provision forbidding employers for penalizing an employee for requesting or using an accommodation for a pregnancy-related condition.

The amendment also includes a provision that makes it unlawful for individuals and companies to refuse to enter into or renew contracts or otherwise do business with someone because she is pregnant. As a result, in addition to protecting employees it also protects independent contractors.
The new law and all of its requirements went into effect on January 16, 2014. You can read the full text online.

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Age discrimination occurs frequently but often is subtle. You may be certain you were fired because of your age, but not have any direct proof or “smoking gun” evidence. Fortunately, that does not necessarily mean you cannot prove your claim.

Employees who want to prove they were fired because of their age frequently try to show their employers replaced them with someone significantly younger. However, as a recent case demonstrates, this is not difficult to do and is not necessarily required.

Marion Cohen worked for the University of Medicine & Dentistry of New Jersey (UMDNJ) as an associate professor of anatomy and cell biology and injury sciences pursuant to a series of one, two and three-year employment contracts. In late 2008 or early 2009 UMDNJ informed her it was not going to renew her contract, supposedly due to budget cuts. At the time, Ms. Cohen was 69 years old.

Ms. Cohen subsequently sued UMDNJ for age discrimination under the New Jersey Law Against Discrimination (LAD). However, the trial judge dismissed her case on a motion for summary judgment, finding she did not have sufficient evidence to prove UMDNJ either sought to or in fact replaced her with someone younger, and had no evidence that her employer disproportionately terminated older employees. Ms. Cohen appealed.

In Cohen v. UMDNJ the Appellate Division reversed the trial court’s ruling. As the court explained, an employee does not necessarily need to show a significant difference in age to support a finding of discrimination. It quoted Bergen Commercial Bank v. Sisler, a 1999 New Jersey Supreme Court opinion which recognizes it is unusual for a company to replace a sixty-year-old employee with someone in his or her twenties. Rather, “the sixty-year-old will be replaced by a fifty-five-year-old, who, in turn, is succeeded by a person in the forties, who also will be replaced by a younger person.”

The Appellate Court found evidence that Ms. Cohen’s former job duties were redistributed to a number of coworkers who ranged between seven and twenty-two years younger than Ms. Cohen. It found this was enough to support an inference of age discrimination. The appellate court also noted additional evidence suggesting UMDNJ’s explanation for it decision not to renew her contract, rather than terminating one of her replacements, was a pretext (or excuse to cover up) for age discrimination.

The Appellate Division also noted it is not always necessary to compare the age of the employee bringing a discrimination lawsuit to the age of her replacement. For example, other factors supporting an inference of age discrimination can include discriminatory actions or comments by someone involved in the termination decision (or another adverse employment action at issue in the case), favoritism toward younger employees, or a pattern of recommending the older worker for positions for which she is not qualified or failing to consider her for positions for which she is qualified. Likewise, depending on the circumstances, the timing or sequence of events leading up to the decision to fire the employee also can support a finding of discrimination.

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Last week, New Jersey’s Appellate Division refused to dismiss a criminal indictment against an employee who took documents from her employer in an attempt to support her employment discrimination claims. While it is a criminal case, it undoubtedly has implications for employment lawyers and individuals with employment law claims.

Ivonne Saavedra worked for the North Bergen Board of Education in Hudson County, New Jersey. She is being prosecuted for taking 367 documents from her employer, including 69 original documents. According to the prosecutor, many of those documents are “highly confidential” and contain “very sensitive” information. A grand jury indicted Ms. Saavedra for second-degree official misconduct and third-degree theft.

According to Ms. Saavedra, she took the documents to help prove she was a victim of gender and ethnic discrimination at her job. She is arguing she had the legal right to take the documents based on a previous New Jersey Supreme Court case, Quinlan v. Curtiss-Wright Corp. Quinlan establishes a balancing test to determine if an employee is protected from retaliation when she takes documents from her employer to help prove an employment discrimination case. I discussed Quinlan in a previous article, Can You Be Fired For Giving Confidential Company Documents to Your Employment Lawyer?

In <a href="" target="_blank"State v. Saavedra, the Appellate Division concluded that a judge does not have to conduct an analysis under Quinlan to determine if an employee can be prosecuted for taking documents from her employer, even if she took them in an effort to prove her discrimination claim. The Court concluded that since there is evidence to support each of the elements of the relevant crimes, the criminal indictment should stand.

Female office worker taking documents to prove discrimination lawsuit.jpgHowever, the Appellate Court recognized that at her trial Ms. Saavedra will have the opportunity to prove she had an honest belief that she had the right to take the documents to support prove her discrimination case. The appellate court referred to this as an “honest error” defense.

The decision notes that if Hudson County prosecuted Ms. Saavedra to retaliate against her for pursuing a discrimination case against the Board of Education, she can bring a civil claim against it for malicious prosecution. She also presumably could bring a retaliation claim under the New Jersey Law Against Discrimination (LAD). Of course, that is likely to be of little solace to Ms. Saavedra while she is facing a criminal prosecution.

The ruling also includes a very strong dissenting opinion from one of the three appellate judges. That judge takes the position that prosecuting Ms. Saavedra would be fundamentally unfair. In doing so, the dissent relies on the strong public policy embodied by the LAD and the Conscientious Employee Protection Act (CEPA) to protect employees against unlawful discrimination and retaliation. It explains that employees in Ms. Saavedra’s shoes are not on fair notice that they are not permitted to take confidential documents from their employers to try to support their discrimination or retaliation lawsuits, especially in light of the protection provided by the New Jersey Supreme Court in Quinlan.

Fortunately, since there is a dissenting opinion in the Appellate Division, there is a good chance the New Jersey Supreme Court will review the case. In the meantime, employees who are considering taking documents from their companies to try to prove discrimination or retaliation claims should act with extreme caution, and should strongly consider talking to an employment lawyer before deciding what to do.

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Earlier this month, a federal judge in New Jersey ruled that Bryan Maher can proceed with numerous employment law claims against his former employer, Abbott Laboratories.

Mr. Maher began working for Abbott in June 2008 as a Senior Distribution Specialist. In 2009, his sales numbers declined. By June the company began requiring him to participate in weekly one-on-one telephone coaching sessions. It also received several complaints from Mr. Maher’s customers. By late August 2009, the company placed Mr. Maher on an informal coaching plan and warned him he could be fired if his sales did not improve.

Disability discrimination -heart issue.jpgIn October 2009, Mr. Maher was diagnosed with atrial fibrillation (an irregular heartbeat) which was exacerbated by workplace stress. The company granted his request to take four days off from work for testing.

Mr. Maher continued to receive complaints from his customers, and his sales results did not improve. Eventually, the company began to prepare a Performance Improvement Plan (PIP).

On approximately February 10, 2010, Mr. Maher requested a short medical leave because he was feeling ill due to stress at work. He also reminded his boss that his son is autistic. According to Mr. Maher, his boss responded by saying “I don’t give a sh*t about your stress, your heart, and I hate to say it but your son either. We need sales and we need numbers.” As a result, Mr. Maher did not take a medical leave. Shortly thereafter, Abbott formally placed him on a Performance Improvement Plan (PIP).

In March 2010, Mr. Maher took two weeks off from work because he needed to care for his autistic son and his own health issues. In the meantime, Abbott received several additional complaints from his customers. Ultimately, on May 11, 2010, the company fired him for “poor performance.”

Mr. Maher then filed a lawsuit, claiming Abbott discriminated against him because he is disabled and because of his association with his disabled son, in violation of the Americans with Disabilities Act (ADA) and the New Jersey Law Against Discrimination (LAD). He also alleged Abbott failed to provide him a reasonable accommodation for his disability and retaliated against him because he requested one.

Abbott eventually filed a motion for summary judgment, seeking to dismiss Mr. Maher’s case. In Maher v. Abbott Laboratories, the Court dismissed portions of Mr. Maher’s claim that Abbott failed to accommodate his disability. For example, it dismissed a claim relating to his request for vacation time in June 2009 because Mr. Maher did not indicate he needed the time off because of a disability. It also dismissed his claim related to his request to transfer his New Jersey sales territory to another salesperson because (1) he did not tell anyone at Abbott he wanted this change because of his disability, (2) employers are not required to provide accommodations that would waive an essential job function, and (3) the accommodation would have imposed an undue hardship on Abbott’s business. The Court also dismissed Mr. Maher’s allegation that he was entitled to take two weeks off in February 2010 as a reasonable accommodation for his son’s autism since neither the ADA nor the LAD requires employers to provide reasonable accommodations for a family member’s disability.

However, the Judge permitted Mr. Maher to proceed with his claim that Abbott failed to accommodate his disability when he asked for time off for his own medical condition in February 2010. The Court found Mr. Maher requested a reasonable accommodation when he made this request since the company knew he had a heart condition and knew he wanted the time off because of it. The Judge concluded his boss’s hostile reaction could lead a jury to conclude Abbot refused to even consider accommodating Mr. Maher’s disability, in violation of the ADA and the LAD.

Further, the Court found the same evidence could support the conclusion that Abbott fired Mr. Maher because he requested an accommodation for his disability. Although the company claims it fired him for poor job performance, a jury could find this was a pretext (excuse) for disability discrimination. The Judge explained this conclusion is further supported by the fact that the company fired Mr. Maher only three months after his boss’s hostile reaction to his request for time off. It also pointed to evidence that many of the performance issues the company used to justify firing Mr. Maher may have been caused by the company’s poor policies and procedures rather than by anything he did wrong.

Ultimately, the Court ruled a reasonable jury could find the company had exaggerated Mr. Maher’s performance deficiencies to justify firing him. Accordingly, it permitted him to proceed with his disability discrimination claims under both the ADA and the LAD.

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