New Jersey Employment Lawyer Blog

Last week, I discussed a case which Clarifies How to Prove Sexual Harassment Under New York City Law. The same case also demonstrates how broad the New York City Human Rights Law (NYCHRL)'s protection is for employees who object about unlawful discrimination or harassment at work. It is a particularly noteworthy employment law decision because it recognizes that a company can violate the NYCHRL if it fires an employee whose job performance is extremely poor if there is evidence the company did not make the decision to fire her until after she objected about sexual harassment.

The NYCHRL prohibits employers from retaliating against anyone who opposes unlawful discrimination or harassment. It has been interpreted to protect a wide range of opposition to discrimination and harassment, including something as simple as expressing the opinion that certain treatment by a supervisor was improper or wrong. It also has been interpreted to prevent a wide range of retaliatory actions. In addition to prohibiting severe forms of retaliation such as firing, demoting, or suspending an employee, it also prohibits any other form of reprisal that is likely to deter someone from objecting to illegal discrimination in the future.

In Mihalik v. Credit Agricole Cheuvreux North America, Inc., Renee Mihalik claims her company's Chief Executive Officer, Ian Peacock, retaliated against her after she rejected his sexual advance in December 2007. In particular, she told him his behavior was "offensive and shameful." She claims Mr. Peacock subsequently berated her in front of her coworkers by saying she adds "nothing of value" to the company, has "no f--ing clue" about what she is doing, and is "pretty much useless." She also claims Mr. Peacock stopped sitting next to her at the trading desk, and told the staff not to invite her to meetings. The Second Circuit Court of Appeals concluded that a jury could find Mr. Peacock took these demeaning actions toward Ms. Mihalik in response to her objection to his sexual overtures, and his behavior reasonably could deter Ms. Mihalik and/or other employees from coming forward with complaints about discrimination in the future.

Ms. Mihalik further claims Mr. Peacock retaliated against her by firing her. During a meeting in April 2008, Mr. Peacock told Ms. Mihalik that things were not working out with her. She responded by asking what was not working out, "me and you or me at the company?" The Court ruled that a jury could believe her question was a reference to her previous rejection of Mr. Peacock's sexual advances, and as a result could find his decision to fire her was retaliatory.

Notably, the court reached this conclusion even though there was proof that Ms. Mihalik's job performance was extremely poor. However, there also was evidence that Mr. Peacock had never spoken to her about her job performance before this meeting, Mr. Peacock admitted he had not decided to fire Ms. Mihalik before the meeting, and there was evidence he decided to fire her only after he became angry about her objection to his inappropriate behavior. Alternatively, the court found that a jury could conclude that Mr. Peacock had more than one reason for firing Ms. Mihalik -- her poor performance and her objection to his sexual advances. Either way, it ruled there is enough evidence to support Ms. Mihalik's claim, and her case should proceed to a trial.

Continue reading "New York City Human Rights Law Protects Poorly Performing Employees From Retaliation" »

A federal judge recently denied an employer's attempt to dismiss an employee's claim under New Jersey's whistleblower law, the Conscientious Employee Protection Act (CEPA). The employee, Mary Stapleton, claims her former employer, DSW, Inc., fired her in violation of CEPA. Ms. Stapleton worked for DSW, a shoe store, in New Jersey. In March 2012, she called New Jersey's Division of Child Protection and Permanency (DCPP) because she saw a female customer who appeared to be neglecting her twenty-two month old child. Among other things, the customer refused to change the child even though she smelled of feces, did nothing to stop the child from painting the store's shelves with nail polish, did not even notice when Ms. Stapleton took the nail polish from the child, and did not react when the child pulled on several other customers' clothes. When the child took items from the counter and threw them on the floor, the customer threatened to hit the child when they got home. Ms. Stapleton reported this to DCPP, and provided the customer's name and address so the agency could identify the customer.

The next day, the store's District Manager learned that Ms. Stapleton had reported the customer to DCPP. She required Ms. Stapleton to submit a written statement about the incident. A few days later, DSW fired Ms. Stapleton because she provided the customer's private identifying information to DCPP, in violation of a company policy prohibiting employees from giving out a customer's identifying information. Ms. Stapleton indicated she was trying to act in the best interests of the child, and that DSW's policy prohibiting her from providing the customer's information was not in the best interests of the child. Nonetheless, DSW did not change its decision to fire her.

Ms. Stapleton eventually filed a lawsuit, claiming DSW fired her in retaliation for her refusal to follow a company policy she reasonably believed was incompatible with the best interests of the child, in violation of CEPA. DSW asked the judge to dismiss her case, arguing Ms. Stapleton did not engage in any whistleblowing activity that is protected under CEPA.

In Stapleton v. DSW, Inc., the United States District Court for the District of New Jersey denied DSW's motion. The Court explained that the purpose of CEPA is to provide protection "to vulnerable employees who have the courage to speak out against or decline to participate in an employer's actions that are contrary to public policy mandates." Among its broad protections, CEPA makes it unlawful for an employer to retaliate against an employee who "objects to, or refuses to participate in" an employer's activity which the employee "reasonably believes" violates the law, or a clear mandate of public policy relating to public health, safety, or welfare.

The Court agreed with DSW that Ms. Stapleton did not object to the company's confidentiality policy until after she had been fired, and as a result could not prove retaliation on that basis. However, it found that if Ms. Stapelton's allegations are true then the company fired her because she refused to comply with a policy she reasonably believed violated the law or a clear mandate of public policy regarding public health, safety, or welfare, since the policy prohibiting employees from giving out a customer's private identifying information would have prevented her from taking an action she believed was necessary to protect the child's health and safety. As a result, it found she has properly set forth a claim under CEPA and can proceed with her lawsuit.

Continue reading "Court Finds Employee's Violation of Company's Policy Protected by New Jersey Whistleblower Law" »

The Third Circuit Court of Appeals recently affirmed a Newark police officer's $700,000 verdict in a wrongful termination case. The case was brought by Jose Montalvo, who was a police officer for the City of Newark from 1990 to 2006. On April 22, 2005, he filed an affirmative action complaint, claiming the police department started harassing him after he fired his weapon at a citizen in 2000. For example, despite Mr. Montalvo's repeated requests, the department refused to return his fire arm, and instead kept him assigned to cell block duty for longer than it had assigned anyone else to it. According to testimony, Newark assigns police officers to the cell block as a form of punishment.

At the trial, Mr. Montalvo presented evidence that Newark began further harassing him after he filed his affirmative action complaint. For instance, the police department suspended him for 21 days relating to the shooting, even though it occurred five years earlier. Ultimately, Newark fired Mr. Montalvo for making false statements during a police department investigation and disclosing confidential information about the investigation. However, Mr. Montalvo presented evidence at the trial showing the department gave less severe discipline to other police officers who were brought up on similar disciplinary charges.

At the trial, the jury found Newark fired Mr. Montalvo in retaliation for filing his affirmative action complaint, in violation of the New Jersey Law Against Discrimination (LAD), and awarded him $700,000. The LAD prohibits employers from retaliating against an employee because he complained about workplace discrimination.

Newark appealed, arguing there was not enough evidence to connect its decision to fire Mr. Montalvo to his affirmative action complaint. However, the Third Circuit rejected this argument. In Montalvo v. City of Newark, it ruled the jury's find that Newark fired Mr. Montalvo in retaliation for his affirmative action complaint was supported by the pattern of Newark antagonizing him after he filed it.

On appeal, Newark also asked the court to overturn the verdict on the basis that the Police Chief who made the decision to fire Mr. Montalvo testified that he did not even know about Mr. Montalvo's affirmative action complaint. However, the court concluded that the jury was not required to believe the Police Chief's testimony. It also explained that, even if the Chief did not know about Mr. Montalvo's affirmative action complaint, his decision to fire Mr. Montalvo still could have been retaliatory since there was evidence he relied on a "tainted" retaliatory performance evaluation prepared by another employee who did know about his complaint. Accordingly, the court affirmed Mr. Montalvo's $700,000 verdict.

Continue reading "Court Upholds Newark Police Officer's $700,000 Verdict in Retaliation Case" »

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" »

New Jersey has a very broad whistleblower law, the Conscientious Employee Protection Act (CEPA). CEPA protects employees from retaliation when they object to, disclose, or refuse to participate in an activity they reasonably believe (1) is in violation of a law, or a rule or regulation written pursuant to law, (2) is fraudulent or criminal, or (3) is incompatible with a clear mandate of public policy concerning public health, safety, or welfare or protection of the environment. Last month, in Hallanan v. Township of Fairfield Board of Education, New Jersey's Appellate Division ruled that CEPA protects an employee of a local school district who objected to an apparent violation of her school district's affirmative action policy since the policy was written to comply with a New Jersey Board of Education regulation.

Lynne C. Hallanan worked for the Township of Fairfield Board of Education as a Supervisor of Curriculum and Instruction. She was also the school district's Affirmative Action Officer. One of her job duties was to prepare an annual Comprehensive Equity Plan (CEP). The CEP documented the school district's compliance with its Affirmative Action Guidelines. The district established those guidelines to comply with a New Jersey Board of Education regulation, N.J.A.C. § 6A:7-1.4(c)(2). That regulation requires school districts to identify and correct all unfair educational and hiring policies to ensure "all persons regardless of race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation, gender, religion, disability, or socioeconomic status shall have equal and bias free access to all categories of employment in the public educational system of New Jersey."

In preparing the CEP, Ms. Hallanan became concerned the Fairfield Board of Education had not posted certain job openings before filling the positions, as required under its Affirmative Action Guidelines. She asked the teacher's union and the superintendent for documents showing that certain positions (including the superintendent's position) had been posted before they were filled. She never received any such documents.

Ms. Hallanan then submitted a draft CEP to the superintendent in which she stated that the district was unable to find paperwork proving it had followed all of its affirmative action policies. According to her, the superintendent indicated he was unhappy she included that in her report, and told her to remove it from the final version. Ms. Hallanan testified that the superintendent then warned her that she was "calling a strike on yourself with this." She also said she felt the superintendent started harassing her after she submitted her draft report. Approximately one month later, the superintendent told Ms. Hallanan that her position was going to be eliminated as a cost-saving measure.

The trial court dismissed Ms. Hallanan's case. It found she did not fall within CEPA's protection because she did not reasonably believe her employer violated a law or regulation, but only believed it had violated its own internal Affirmative Action policy. However, the Appellate Division saw it differently. It found Ms. Hallanan had objected to something she reasonably believed violated N.J.A.C. § 6A:7-1.4(c)(2), a Board of Education regulation that seeks to prohibit employment discrimination. It also found evidence that Ms. Hallanan reasonably believed the district had bypassed its own Affirmative Action Guidelines when it hired several employees, including the superintendent. Finally, it concluded that there was enough evidence for a jury to find that the decision to fire Ms. Hallanan was retaliatory. As a result, it reversed the lower court's decision to dismiss Ms. Hallanan's case, paving the way for her to have her day in court.

Continue reading "New Jersey Whistleblower Law Protects Employee Who Objected to Violation of School District's Affirmative Action Policy" »

The New Jersey Appellate Division recently ruled, in an employment law case in which the same law firm represented two clients, and only one of those clients won at trial, it was improper to reduce the attorney's fee award by 50%. Many employment laws, including New Jersey's Conscientious Employee Protection Act (CEPA) and the New Jersey Law Against Discrimination (LAD), allow an employee who wins his case to recover his reasonable attorney's fees and costs. Ordinarily, when an attorney achieves excellent results for his client, he should be awarded all of his attorney's fees. Otherwise, the judge can reduce the fee based on the time that he finds was unnecessary or unreasonable.

The case, Donelson v. DuPont, involved two employees. Joseph Donelson brought a whistleblower claim under CEPA and an age discrimination claim under the LAD. However, he lost his case at trial. The other employee, John Seddon, brought a whistleblower claim under CEPA. Seddon won at trial, and the jury awarded him $724,000 in economic damages, plus $500,000 in punitive damages. As I discussed in June, in an earlier decision stemming from Donelson, the New Jersey Supreme Court ruled that New Jersey Employees Can Recover Lost Wages if Forced to Resign Because Retaliation Caused Psychiatric Disorder. But the Court sent the case back to the Appellate Division to decide whether the trial court had properly reduced Seddon's attorney's fees.

Since Seddon and Donelson were represented by the same lawyer, and their cases were factually related, it was difficult to determine how much of the total time the lawyers spent on the case was necessary to Seddon's case, and how much was only necessary for Donelson's case. As a result, the trial judge decided to cut Seddon's attorney's fee award in half.

The Appellate Division ruled that, when the trial judge calculated Seddon's attorney's fees, it was proper to consider the fact that Donelson lost his LAD case. However, it found it was improper to reduce Seddon's attorney's fee by 50 percent because Donelson would have been a witness in Seddon's case even if he was not a party to the lawsuit, and his attorney would have had to spend much of the same time either way. Accordingly, the Appellate Division sent the case back to the trial court to reassess the appropriate attorney's fee.

Continue reading "New Jersey Appellate Court Rejects 50% Reduction to Attorney's Fees Award in Whistleblower Lawsuit" »

Last week, I discussed the case of Thomas Bowers, an IT Professional who won his appeal of his race discrimination case against the New Jersey Judiciary. That case, Bowers v. New Jersey Judiciary, Superior Court of New Jersey, Monmouth Vicinage, also discusses Mr. Bowers' retaliation claim.

Mr. Bowers filed an internal Equal Employment Opportunity ("EEO") complaint with his employer, the New Jersey Judiciary. He claimed his new supervisor, Troy Fitzpactrick, was harassing him because of his race. For example, he indicated that Mr. Fitzpatrick gave him assignments with unrealistic deadlines.

According to Mr. Bowers, the day after Mr. Bowers was interviewed about his EEO complaint, Mr. Fitzpatrick called him into his office and asked him about his complaint and work assignments. That meeting eventually became heated, and Mr. Fitzpatrick made threatening statements. Three days later, Mr. Bowers filed a second EEO complaint about Mr. Fitzpatrick's behavior during that meeting.

Mr. Bowers then went on a medical leave due to anxiety and stress caused by the harassment and discrimination he had been experiencing at work. During the first month of Mr. Bowers' medical leave, several Judiciary employees and a sheriff's officer came to Mr. Bowers' home to take back his laptop, supposedly because they were investigating a security breach. However, there is evidence that the Judiciary had little or no reason to suspect that Mr. Bowers was involved in that security breach.

Approximately three months later, the Judiciary terminated Mr. Bowers' employment, claiming he "abandoned" his job. However, at that point Mr. Bowers still had not been cleared to return from his medical leave.

The trial court dismissed Mr. Bowers' retaliation claim, concluding that the lower-level job duties he was assigned were part of his job description, his argument with Fitzpatrick and the confiscation of his laptop were not legally actionable, and his termination was not retaliatory. But New Jersey's Appellate Division found these conclusions were reasonable, but that it was possible that a jury would instead find that some or all of the Judiciary's actions toward Mr. Bowers were retaliatory. It therefore sent Mr. Bowers' case back to the trial court, to give him an opportunity to try to prove his retaliation claim.

The Appellate Division's decision also addressed Mr. Bowers' claim that the Judiciary failed to provide a reasonable accommodation for his disability, Anxiety Disorder. I will discuss that aspect of his case in my next article.

Continue reading "New Jersey Judiciary Faces Retaliation Lawsuit" »

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" »

On April 14, 2011, New Jersey's Appellate Division ruled that filing an employment discrimination lawsuit can be a protected "whistleblower" activity under the New Jersey Conscientious Employee Protection Act (CEPA). Among other things, CEPA prohibits New Jersey employers from retaliating against an employee because he discloses or threatens to disclose to a supervisor or a public body, an activity, policy or practice that he reasonably believes violates the law.

The case, Hester v. Parker, involves Terry Hester, the former Director of Facilities/Operations for the Winslow Township Board of Education (Board). Mr. Hester, who is Caucasian, complained to the Board's Director of Human Resources that Patricia Parker, an African-American Board member, made racist and discriminatory comments about job candidates.

After the Board failed to address his internal discrimination complaint, Mr. Hester filed a lawsuit under the New Jersey Law Against Discrimination (LAD). However, the trial court dismissed his lawsuit.

But, in an unpublished decision the Appellate Division reversed. It ruled that both Mr. Hestor's internal complaint and lawsuit alleging reverse discrimination could be considered protected "whistleblowing" under CEPA. The Court also concluded that a jury could find the Board's decision to fire Mr. Hestor was retaliatory based on the fact that it gave him a negative performance evaluation only ten days after he filed his lawsuit, and the Superintendent recommended firing him only nine days after the Board received a copy of his lawsuit.

However, the Appellate Division made it clear that not every civil lawsuit or internal complaint to an employer is covered by CEPA. Rather, it ruled that a lawsuit is protected by CEPA only if (1) the employee complained about a violation of a mandatory legal standard like discrimination based on race, gender, religion, or sexual preference, and (2) the employee made an internal complaint before filing the lawsuit, but the employer failed to address it.

Continue reading "Filing Lawsuit Can Be Protected Under New Jersey's Whistleblower Law" »

On February 28, 2011, New Jersey's Appellate Division issued an unpublished opinion ruling that a jury should decide whether the New Jersey Department of Corrections ("DOC") retaliated against one of its employees, Bienvenido Montalvo.

Mr. Montalvo Filed a National Origin Discrimination Complaint With the EEOC

Mr. Montalvo worked for DOC as a senior corrections officer at Northern State Prison ("NSP"). On October 5, 2004,he filed a complaint with the United States Equal Employment Opportunity Commission ("EEOC") in Newark, New Jersey. He claimed several superior officers harassed and retaliated against him because of his national origin, Hispanic/Puerto Rican. The EEOC sent Mr. Montalvo's Charge of Discrimination to DOC in Trenton on October 7. It is unclear exactly when NSP received a copy of Mr. Montalvo's Notice of Charge of Discrimination, but the evidence seems to indicate that DOC received it sometime in October 2004.DOC Unfairly Disciplined Mr. Montalvo After He Complained About Discrimination

On November 4, 2004, Mr. Montalvo received a notice of disciplinary action charging him with conduct unbecoming and other sufficient causes for allegedly assaulting a prisoner on October 28. DOC suspended him without pay pending a hearing, and told him he was subject to potentially being fired. However, after a hearing in December 2004, the charges against Mr. Montalvo were dismissed because DOC failed to present any evidence to support them. Mr. Montalvo was then reinstated to his job with full back pay.

The Trial Court Dismissed Mr. Montalvo's Retaliation Claim

Mr. Montalvo sued DOC and six of its employees alleging national origin discrimination and retaliation in violation of the New Jersey Law Against Discrimination ("LAD"), among other claims. However, the trial court dismissed his retaliation claim, finding he did not have enough evidence to support it.

The Appellate Division Reinstated Mr. Montalvo's Retaliation Claim

The Appellate Division disagreed, and instead ruled that Mr. Montalvo is entitled to a trial. It concluded that he suffered an "adverse employment action" because a reasonable employee might not file a discrimination claim if he knew his employer would respond by falsely accusing him of committing an assault, suspending him without pay, and forcing him to defend himself at a disciplinary hearing. It further found it is possible for a jury to find from the evidence that DOC knew about Mr. Montalvo's EEOC complaint when it disciplined him. The Court concluded that a reasonable jury could believe the discipline was retaliatory, based on evidence including the fact that (1) DOC suspended him less than a month after he filed his Charge of Discrimination with the EEOC; (2) the officers who brought the disciplinary charges against him told him he had a target on his back and they wanted to fire him in October 2004; and (3) DOC sought to discipline him despite a videotape and several reports from the day of the alleged assault which confirmed he had done nothing wrong. Accordingly, the Appellate Division sent Mr. Montalvo's case back to the trial court for a jury trial.

Continue reading "New Jersey Appellate Division Reinstates Retaliation Claim Against Department of Corrections" »

As an employment lawyer, I am often asked whether an employee can take copies of documents from their job to help provediscrimination or retaliation. There is no simple answer to that question. Rather, as the New Jersey Supreme Court recognized last week in Quinlan v. Curtiss-Wright Corporation, the answer involves balancing the employee's right to be free from discrimination and the employer's obligation to protect confidential information.

In Quinlan, the New Jersey Supreme Court established 7 factors courts must consider when deciding whether an employee can sue for retaliation if he is fired for giving copies of confidential company documents to his employment lawyer. Those factors are:

1. How did the employee get the document? Documents obtained in the ordinary course of an employee's job are more likely to be protected than documents obtained by rummaging through files or snooping in someone else's office.

2. What did the employee do with the document? Documents used to evaluate or prove discrimination are more likely to be protected.

3. What is the content of the document? Documents that are privileged or reveal a trade secret or other confidential information are less likely to be protected.

4. Did the employee violate a clear company privacy or confidentiality policy, and does the company consistently enforce those policies?

5. How important is the document is to the employee's discrimination case, compared to how disruptive the disclosure of the document is to the company's business?

6. Why did the employee copy the document, rather than just ask the company for a copy of it during the lawsuit? For example, how likely is it that the company would have lost or destroyed the document if the employee had not kept a copy?

7. What will be the impact of the decision on (1) the Law Against Discrimination's goal to eliminate employment discrimination, and (2) the employer's right to protect confidential information?

In some situations, making a copy of a key documents can be extremely helpful to prove a discrimination case. In other situations, employees can be fired or even sued for taking copies of confidential documents from their jobs. As a result, it can be extremely important to talk to an experienced employment lawyer before you decide whether you should take copies of documents to help prove your discrimination or retaliation case.

The False Claims Act is a federal whistleblower law. It allows individuals who have information about a company defrauding the federal government to bring lawsuits on behalf of the federal government. Someone who brings a case under the False Claims Act can receive between 15% and 25% of any money the government recovers.

On October 26, 2010, the United States Department of Justice announced that GlaxoSmithKline settled a case under the False Claims Act, and pleaded guilty to criminal allegations that it manufactured and distributed adulterated drugs. As part of the settlement, Glaxo is paying a $150 million criminal fine and a $600 million civil penalty to the government. Cheryl Eckard, the Glaxo employee who brought the False Claims Act case, will receive 16% of the $600 million civil penalty, meaning she is entitled to $96 million.

According to the Department of Justice's press release, the case against Glaxo is part of the federal government's efforts to combat health care fraud. The Justice Department further indicates that the United States has recovered "approximately $4.2 billion since January 2009 in cases involving fraud against federal health care programs," and its "total recoveries in False Claims Act cases since January 2009 have topped $5.4 billion."

Although the False Claims Act is a federal law, New York, New Jersey, and New York City each have their own False Claims Acts. As a result, employees in New York and New Jersey who are aware of fraud against the government potentially could recover a portion of the money out of which the government has been cheated.

Additional information about the False Claims Act is available on our website.

Two weeks ago, the United States Equal Employment Opportunity Commission (EEOC) filed a retaliation lawsuit against New York based Fox News Network LLC, the company that owns and operates the Fox News Channel. According to the EEOC's September 30, 2010 press release, the lawsuit alleges that Fox News retaliated against Catherine Herridge, one of its female news correspondents, after she complained about gender and age discrimination. The EEOC is a federal agency that helps employees enforce their rights under three anti-discrimination laws, Title VII of the Civil Rights Act of 1964, the Equal Pay Act, and the Age Discrimination in Employment Act.

In 2007, Ms. Herridge made several internal complaints that she was experiencing disparate pay and unequal employment opportunities because of her gender and age, the EEOC announced. Fox News conducted an investigation, but found no evidence of age or gender discrimination. In the fall or summer of 2008, several months after Fox News completed its internal investigation, Ms. Herridge refused to sign a new employment agreement with Fox News because it referred to her discrimination complaints. Fox News ignored Ms. Herridge's requests to remove that language from her contract, and ignored her other attempts to negotiate her employment agreement. As a result, instead of entering into a new guaranteed employment contract, Ms. Herridge became an employee at-will. It was not until June 2009, after Ms. Herridge filed a charge of discrimination with the EEOC and the EEOC investigated that Fox News finally removed the language about Ms. Herridge's discrimination complaints from her employment contract.

According to the EEOC's press release, the lawsuit is seeking money damages to compensate Ms. Herridge for Fox New's retaliation, as well as punitive damages and an injunction to prevent Fox News from engaging in further retaliation against employees who oppose discrimination. Discussing the lawsuit, EEOC attorney Lynette A. Barnes stated that "[t]he anti-retaliation provisions of Title VII and other federal anti-discrimination laws are indispensable to the attainment of a workplace free of discrimination." Ms. Barnes further indicated that "[e]mployers must take care that any action taken in response to a discrimination complaint is constructive and not retaliatory."

Continue reading "EEOC Sues Fox News for Retaliation on Behalf of Female Reporter" »

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.

Earlier this year, the New Jersey Supreme Court ruled that an employer can violate the New Jersey Law Against Discrimination if it retaliates against an employee after it fires him. The Appellate Division decision reached the same conclusion in 2008, as discussed in a previous article. The New Jersey Law Against Discrimination prohibits employment discrimination, including harassment and discrimination based on gender, race, age, disability and religion. It also includes a provision that makes it unlawful for anyone to retaliate against someone because they objected to another actual or apparent violation Law Against Discrimination.

The case, Roa v. LAFE, involved a husband and wife who worked for Gonzalez and Tapanes Foods, Inc. (G&T), a New Jersey corporation which does business under the name LAFE Foods. The wife, Liliana Roa, claimed G&T's Vice President, Marino Roa, had been involved in extramarital affairs with two other G&T employees. Liliana's husband, Fernando Roa, eventually told Marino's wife about the affairs. According to Fernando and Liliana, Marino then began a campaign of harassment against them, attempted to make their work lives miserable and threatened to fire both of them. When Fernando told G&T's President that Marino was sexually harassing company employees, G&T ignored his complaint. G&T eventually fired both Fernando and Liliana.

Fernando and Liliana sued G&T and Marino for firing them in retaliation for Fernando's complaint of sexual harassment. However, they filed their lawsuit more than two years after G&T fired them. As a result, the trial court dismissed their case because it was filed after the New Jersey Law Against Discrimination's two year statute of limitations had expired.

However, on appeal the New Jersey Appellate Division reinstated Fernando's case. It found he alleged that G&T and Marino continued their pattern of retaliation after they fired him, and that Fernando filed his lawsuit within two years after that pattern of retaliation ended. Specifically, Fernando alleged that G&T removed him from the company's medical insurance a few weeks before the company fired him, and did not reimburse him for his medical expenses for about three months.

The New Jersey Supreme Court agreed with the Appellate Division that Fernando has a valid and timely whistleblower claim, even though the retaliation occurred after G&T fired him. It ruled that retaliation does not have to relate to present or future employment to be actionable under the New Jersey Law Against Discrimination.

The Supreme Court also recognized that the statute of limitations did not begin to run until Fernando knew or should have known that G&T cancelled his health insurance. It found that G&T kept him in the dark about cancelling his medical insurance until he attempted to use his benefits and was denied coverage. The Court ruled that, under the Law Against Discrimination, the statute of limitations does not begin to run until an employee either actually knows or is on notice that the company retaliated against him.

The Supreme Court also agreed that if Fernando can prove it was retaliatory, then G&T's decision to cancel his medical insurance violates the New Jersey Law Against Discrimination. The Court ruled that retaliation is actionable if it is "materially adverse." It explained that something is "materially adverse" if it is significant enough that it might convince an employee not to pursue a claim of discrimination in the future. In contrast, minor annoyances are not legally actionable even if they are retaliatory.

However, the New Jersey Supreme Court disagreed with the Appellate Division, ruling that Fernando filed his claim too late. Specifically, the Court found Fernando's claim that G&T fired him in retaliation for his objection to sexual harassment was separate from his claim that G&T retaliated against him by removing him from its medical insurance plan too soon. Since Fernando filed his lawsuit more than two years after G&T fired him, his termination claim was outside of the statute of limitations.

Finally, the Supreme Court ruled that even though Fernando and Liliana were too late to sue G&T for firing them illegally, Fernando might be able to offer evidence that G&T fired them illegally to help prove G&T was retaliating against him when it took him off its insurance benefits. Specifically, the trial judge will have to decide whether Fernando can use evidence that G&T fired him and Liliana in retaliation for their complaints of sexual harassment to he

lp prove his case.