New Jersey Employment Lawyer Blog

Last week, in Walker v. Guiffre and Humphries v. Powder Mill Shopping Plaza, the New Jersey Supreme Court upheld the longstanding rule that a plaintiff can receive an enhanced attorney fee award under New Jersey laws that allow a prevailing plaintiff to recover his attorneys' fees from the defendant. This applies to many New Jersey employment laws, including the New Jersey Law Against Discrimination (LAD), the Conscientious Employee Protection Act (CEPA), and the New Jersey Family Leave Act (FLA).

This right to a contingency fee enhancement dates back to Rendine v. Pantzer, a 1995 New Jersey Supreme Court case which discusses an employee's right to recover his reasonable attorney's fees if he wins a case under the LAD. After the court calculates the attorneys' reasonable fee, it must determine whether and how much of an enhancement he should receive. The fee enhancement is intended to make up for the risk a lawyer takes when taking a case on a contingency fee basis. Contingency fee enhancements generally should range between five and fifty percent, and typically range between twenty and thirty-five percent. The maximum possible fee enhancement under New Jersey law is 100 percent, but such a high enhancement is available only in a "rare and exceptional case."

In contrast, in April 2010, in Perdue v. Kenny A., the United States Supreme Court recognized that, under federal law, an attorney fee enhancement is permitted only in "rare" and "exceptional" circumstances. Fortunately, in Walker and Humphries the New Jersey Supreme Court decided not to follow Perdue, and instead continued to follow Rendine. As a result, employees who bring claims under New Jersey fee-shifting statutes such as the LAD, CEPA and the FLA are entitled to seek enhanced attorney fees. However, employees bringing claims under federal employment laws such as the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), and the Family & Medical Leave Act (FMLA), are rarely entitled to fee enhancements.

Continue reading "New Jersey Supreme Court Reaffirms Lower Threshhold for Attorneys' Fees Enhancements" »

I often read status updates on sites like Facebook, LinkedIn and Twitter reflecting my friends' feeling about their work, bosses, and co-workers. It is worth a reminder that such postings potentially can be used against you in an employment law case, such as a discrimination, harassment, or retaliation lawsuit. If your profile is public, or if one of your supervisors is your "friend," your employer will have easy access to that information. But your employer might be able to obtain the information in a lawsuit even if it was originally visible only to individuals who you have accepted as "contacts" or "friends."

For example, one of my clients recently received the following request from a large law firm that represents employers:

Produce a copy of the contents of Plaintiff's account on any social media websites, such as Facebook, MySpace, Twitter, LinkedIn, etc.

I intend to object to this request because it is nothing more than a fishing expedition, and the employer is seeking information that is not relevant to the case. But there are many ways in which your posts may be relevant to an employment law matter. For example, if you are having a good day at work and post "I love my job," that could be used against you to prove you did not experience a hostile work environment, and therefore harm your harassment claim. On the other hand, if you express negative feelings about your boss, co-workers, clients, or customers, then you could be accused of disparaging your employer, which could violate an internal company policy, your employment contract, or your duty of loyalty to your employer.

It is important to realize that, unless you delete it, all of the data you have posted on Facebook, including wall posts, photos with comments, videos, private messages, friend lists and other user profile content, remains accessible in an archive that is fairly easy to retrieve. You can download it from the Account Settings menu. Thus, even very old posts could hurt you if the employment relationship goes bad. Be very careful about what information you post about your job on social networking websites. At the very least, you should not post anything about your current or former employer that you would not want the employer to read.

However, once you are considering filing a lawsuit, you cannot erase your archive because you would be destroying potential evidence in your case, and you could be penalized. For example, in Lester v. Allied Concrete, a plaintiff who prevailed in a wrongful death case was ordered to pay a $180,000 fine for deleting his Facebook profile.

Continue reading "Beware: Your Boss Might Read Your Posts on Social Networking Sites" »

Under the "cat's paw" theory, a company can be held liable for discrimination based on the discriminatory intent of an employee who influenced an employment decision, even if the person who actually made the decision did not discriminate. Last month, the United States Court of Appeals for the Third Court Circuit applied the cat's paw theory and ruled a decision to fire an employee was retaliatory even though it was made by a disciplinary review board that did not intend to retaliate against the employee since the review process began as a result of retaliation. The Third Circuit is the federal appellate court that handles appeals from New Jersey. As I discussed in previous articles, earlier this year the United States Supreme Court adopted the "cat's paw" theory in federal cases, and the New Jersey Appellate Division adopted the cat's paw theory in November 2008.

In Moore v. City of Philadelphia, three police officers sued the Philadelphia Police Department for retaliating against them because they objected to the fact that the Department was discriminating against African-American police officers. One of those Officers, Raymond Carnation, claimed he was assigned to work alone in dangerous neighborhoods in the rain and cold in retaliation for his objections to the race discrimination, and that Police Captain William Colarulo threatened to make his life "a living nightmare" if he filed a complaint with the United States Equal Employment Opportunity Commission ("EEOC"). Eventually, the Department brought disciplinary charges of insubordination against Officer Carnation, supposedly based on verbal altercation with Captain Colarulo. The disciplinary charges were referred to the Police Board of Inquiry ("PBI"), a board that investigates disciplinary charges against members of the Police Department and recommends the appropriate discipline.

The PBI found Officer Carnation guilty of the charges against him, and recommended that the City should fire him. The Police Commissioner agreed with that recommendation, and the City fired Officer Carnation.

After a trial in the civil lawsuit, a jury found in favor of all three of the police officers, including Officer Carnation, concluding the City had retaliated against them in violation of Title VII of the Civil Rights Act of 1964. Specifically, the jury found that Officer Carnation's objections to race discrimination was a factor that motivated the Department's decision to fire him.

One of the primary issues on the appeal to the Third Circuit was whether the City could be held liable for retaliating against Officer Carnation even though the decision to fire him was made by the PBI and the Police Commissioner, neither of which had any intention of retaliating against him. The Court explained that an employer can be held liable for retaliation if there is a direct and substantial relation between the retaliatory action and the harm it caused the employee, as long as the link is not "too remote or indirect." Based on the facts, it concluded that it was reasonable for the jury to conclude that Captain Colarulo's retaliatory intent had a direct and substantial relation to Officer Carnation being fired, since his actions led to the PBI's investigation. As a result, it upheld the jury's verdict in favor of Officer Carnation.

Continue reading "Third Circuit Rules Employer Can Be Liable if Supervisor's Discrimination Influenced Disciplinary Hearing" »

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" »

In an important employment law decision, on June 8, 2011, New Jersey's Appellate Division ruled that an employee can enforce her employer's promise that she would have a job when she returned from her maternity leave. The Court reached that conclusion even though the company, Telcordia Technologies, Inc., included a clear disclaimer in both its Code of Business Ethics and the employee's job application which stated that she is an employee-at-will who can be fired "at any time, with or without grounds, just cause or reason and without giving prior notice."

In Lapidoth v. Telcordia Technologies, Inc., employee Sara Lapidoth asked her employer for a six-month maternity leave from her position as a manager on a product called ARIS, for the birth of her tenth child. The letter Telcordia sent her granting her leave also guaranteed that the company would reinstate her to the same job or a comparable one if she returned to work within 12 months. Ms. Lapidoth later asked Telcordia to extend her leave by 6 months, for a total of a one-year maternity leave. Telcordia granted her request through another letter that promised to reinstate her at the end of her leave.

However, before Ms. Lapidoth was ready to return from her maternity leave, Telcordia decided to eliminate one of its two ARIS manager positions. The company decided to lay off Ms. Lapidoth because the only other ARIS manager had slightly better performance ratings. Since the company did not have any appropriate job openings, it fired Ms. Lapidoth.

The Appellate Division ruled that Ms. Lapidoth's maternity leave was not protected by the Family and Medical Leave Act (FMLA) or the New Jersey Family Leave Act (NJFLA) because she took off more than 12 weeks. Both the FMLA and the NJFLA require employers to give qualified employees up to 12 weeks off for the birth of a child.

However, the Court ruled that the letters Telcordia sent to Ms. Lapidoth could be enforceable employment contracts that guaranteed her a job when she was ready to return from her maternity leave. It found that, even though the company's Code of Business Ethics and Ms. Lapidoth's employment application said she was an employee-at-will, and indicated that nothing else could create any contractual rights between her and the company, the letters granting her maternity leave seemed to contradict those statements. The Court also stated that, although the letters said the company did not have to reinstate Ms. Lapidoth if it had to eliminate her job, that was not necessarily a defense because the company decided it had to eliminate one of two ARIS manager positions, but not necessarily Ms. Lapidoth's position. The Court also noted that Telcordia reinstated Ms. Lapidoth after each of her nine previous maternity leaves. Based on the circumstances, the Appellate Division concluded that a jury could find the letters guaranteeing Ms. Ladipodth a job at the end of her maternity leave created an enforceable employment contract.

Continue reading "New Jersey Employees Can Enforce Employer's Promise of Reinstatement After Maternity Leave" »

Earlier today, the New Jersey Supreme Court ruled that employees who are forced to resign as a result of retaliation by their employers in violation of the Conscientious Employee Protection Act (CEPA) may be able to recover lost past and future wages even if they were not fired or constructively discharged. CEPA is New Jersey's whistleblower law. Among other things, it prohibits employers from retaliating against employees who object to or refuse to participate in activities they reasonably believe are illegal, fraudulent, or violate a clear mandate of public policy regarding public health, safety, welfare, or the environment.

John Seddon, an employee who worked as an operator technician for DuPont, reported numerous workplace safety concerns, and eventually filed a complaint with the United States Occupational Safety and Health Administration (OSHA). DuPont retaliated against him in numerous ways, including verbal abuse, negative performance reviews, putting him on probation, forcing him to take a disability leave, suspending him for 53 days, making false accusations about him, and requiring him to work 12-hour shifts in isolation. The harassment eventually caused Mr. Seddon to suffer a mental breakdown. Unable to work for DuPont any longer, he took a 6-month disability leave of absence, and then began receiving a disability pension.

After a trial, a jury awarded Mr. Seddon $724,000 in economic damages and $500,000 in punitive damages. The trial court also awarded him $523,289 in attorney's fees, for a total of nearly $1.75 million. However, the New Jersey Appellate Division reversed the verdict, ruling that Mr. Seddon could not recover lost wages under CEPA because he was neither fired nor constructively discharged. A constructive discharge is when an employee is forced to quit because his work environment is so intolerable that any reasonable person in his situation would feel compelled to resign.

But, the New Jersey Supreme Court disagreed that an actual firing or constructive discharge is required for an employee to recover lost wages under CEPA. Rather, the Court ruled that an employee can recover lost wages if his employer's illegal retaliation caused him to be unable to work. As a result, in Donelson v. DuPont Chambers Works, it restored Mr. Seddon's judgment.

Continue reading "New Jersey Employees Can Recover Lost Wages if Forced to Resign Because Retaliation Caused Psychiatric Disorder" »

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 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 March 22, 2011, the United States Supreme Court ruled that the Fair Labor Standards Act of 1938 ("FLSA") prohibits employers from retaliating against employees who make oral complaints about violations of the FLSA. The FLSA is a federal law that sets minimum wages, maximum hours, and overtime pay requirements. It includes an antiretaliation provision which forbids employers from firing or otherwise discriminating against employees because they "filed any complaint" under the FLSA.

The case, Kasten v. Saint-Gobain Performance Plastics Corp., involves Kevin Kasten's lawsuit against his former employer, Saint-Gobain Performance Plastics Corporation. Mr. Kasten claimed Saint-Gobain fired him in retaliation for his verbal objections to the company's violation of the FLSA. Specifically, he repeatedly told his supervisor, several human resources representatives, and other Saint-Gobain officials that the company was violating the law by locating its time clocks in a place where employees could not get credit for the time they spent putting on and taking off their protective gear. In a separate lawsuit, Mr. Kasten proved that Saint-Gobain violated the FLSA because it was required to pay its employees for the time they spent "donning and doffing" their protective gear.

The Supreme Court found that Mr. Kasten is entitled to try to prove his retaliation case because "filing any complaint" under the FLSA can include making a verbal complaint to your employer. The Court noted that the word "filed" has different meanings in different contexts. Sometimes it implies something in writing, but in other contexts it can include verbal statements. It then considered that when Congress passed the FLSA, it recognized enforcement of the law was likely to depend on "information and complaints received from employees seeking to vindicate rights claimed to have been denied," and that the antiretaliation provision was intended to encourage employee to come forward by preventing employers from silencing them through "fear of economic retaliation." Accordingly, the Court concluded that Congress did not intend to limit the FLSA's antiretaliation protection to written complaints, since that would make it more difficult for illiterate, less educated, and overworked workers to complain. It also explained that limiting complaints to written complaints would prevent Government agencies from using hotlines, interviews, and other verbal complaint methods, and would discourage employees from using informal workplace grievance procedures.

However, the Supreme Court also recognized that it would not be fair to employers if the FLSA's antiretaliation provision applied when the employer did not have fair notice that the employee made a complaint that could subject the company to a retaliation claim. It therefore ruled that an oral complaint must have enough formality that the employer either understood or reasonably should have understood that the complaint was a business concern. In other words, a complaint is "filed" when a reasonable person would have understood that the employee put the employer on notice that he was asserting a right under the FLSA.

Continue reading "U.S. Supreme Court Rules FLSA Forbids Retaliation Against Employees Who Make Oral Complaints" »

The New Jersey Law Against Discrimination requires employers to provide reasonable accommodations to allow employees to observe their sincerely held religious practices and observances, unless the company cannot accommodate the employee without causing an undue hardship to its business. Last month, New Jersey's Appellate Division reversed a trial court's decision which had dismissed a religious discrimination lawsuit in which the employee, Gabriel Sepulveda, claimed his employer failed to reasonably accommodate his belief that Sunday should be a day of rest.

Mr. Sepulveda is a born-again Christian. When Borne Holding Co. suddenly required its employees to work on Sundays, Mr. Sepulveda refused to do so because working on Sunday conflicts with his religious beliefs. Borne fired him as a result. It did so without ever engaging in the required "interactive process," meaning no one at the company spoke to Mr. Sepulveda to determine whether there was another way to accommodate his religious belief, such as by having him work overtime on weekdays or Saturdays instead of Sundays.

Prior to the appeal, the trial court dismissed Mr. Sepulveda's case because it found his religious belief was not "sincerely held." It relied on the fact that after Borne fired him, Mr. Sepulveda worked at two other companies where he worked on Sunday evenings. However, Mr. Sepulveda explained that since his Sabbath ended at sundown, those jobs did not conflict with his religious beliefs. He also claimed that he had to accept those jobs because he was desperate to find work.

In an unpublished opinion, Sepulveda v. Borne Holding Co., Inc., the Appellate Division found the trial court should not have dismissed Mr. Sepulveda's case. Rather, the Court concluded that a jury should decide whether Mr. Sepulveda had a "sincere" religious belief that prohibited him from working on Sundays. Accordingly, it sent Mr. Sepulveda's case back to the trial court to give him a chance to try to prove his case.

Continue reading "New Jersey Court Reinstates Employee's Failure to Accommodate Religious Belief Claim" »

As an employment lawyer, I am often asked whether an employee can take copies of documents from their job to help prove discrimination 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?

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.

In June 2009, I discussed the New Jersey Appellate Division's age discrimination ruling that it is illegal for an employer not to renew an employment contract because the employee is over 70 years old. The New Jersey Supreme Court recently agreed, and affirmed the Appellate Division's decision.

Specifically, in Nini v. Mercer County Community College, New Jersey's highest court ruled that a company's decision not to renew an employment contract is more like firing a current employee than deciding not to hire a job candidate. As a result, the Court concluded that even though the New Jersey Law Against Discrimination (LAD) allows employers to refuse to hire employees because they are over 70 years old, that exception does not apply when a company decides not to renew an employee's contract after he or she turns 70.

In explaining its decision, the New Jersey Supreme Court stated that the purpose of the LAD is to protect New Jersey citizens "from all forms of discrimination in employment and, in particular, to protect our older citizens from being forced out of the workplace based solely on age." It also indicated that the over 70 exception is meant to allow employers to avoid the cost of training new employees who have "limited long-term prospects." However, that does not apply to an employee who already has been working for the company and does not need training.

If you are interested in more information about the facts of Nini, then please read my previous article, New Jersey Law Prohibits Refusal to Renew Contract Because Employee is Over 70 Years Old. If you work in New York or New Jersey, and you have been fired, harassed, or experienced any other discrimination because of your age, then you should consider contacting one of our experienced age discrimination lawyers.

In an article I wrote last May, Employees Working in Other States Can Sue Under New York's Anti-Discrimination Laws, I discussed Hoffman v. Parade Publications. In that age discrimination case, New York's mid-level appellate court ruled that the New York City Human Rights Law (NYCHRL) applies to non-residents of NYC if the discriminatory decision was made in NYC. It also ruled that the New York State Human Rights Law (NYSHRL) applies to non-residents of NYC if the discriminatory employment decision was made in New York State. However, last month New York's highest court, the Court of Appeals, reversed that decision and set a new standard.

The Court of Appeals ruled that for the NYSHRL to apply, the employee bringing the discrimination lawsuit must either be a resident of New York State, or show that the impact of the discrimination was felt within New York State. Likewise, it ruled the NYCHRL applies only if the victim of discrimination is a resident of New York City, or the impact of the discrimination was felt in New York City.

The Court of Appeals did not explain what kind of "impact" is necessary for the NYCHRL or the NYSHRL to apply to a non-resident. Presumably, New York law protects employees who primarily work in New York, no matter where they live. However, the Court of Appeals found Mr. Hoffman, who lived and worked in Georgia, was not protected by the NYSHRL or the NYCHRL even though his boss supervised him, made the decision to fire him, and called to fire him, all from the company's headquarters in New York City. In other words, the court found those facts were not enough to show the discriminatory employment decision had an "impact" on New York.

So what is the practical meaning of this ruling for employees working for companies based in New York, but living in New Jersey? Fortunately, New Jersey residents are protected by the New Jersey Law Against Discrimination (NJLAD), which usually provides equal or greater protection against discrimination than New York State law. However, fewer employees working for New York City companies will be able to take advantage of the even broader protections of the NYCHRL. For example, as I discussed in a previous article, Extended Medical Leave Can Be Reasonable Accommodation Under New York Law, this includes the fact that under the NYCHRL employers are required to provide accommodations to their disabled employees even if the accommodations are not reasonable.

A copy of the Court of Appeal's Decision in Hoffman v. Parade Publications is available here.