New Jersey Employment Lawyer Blog

Earlier this month the New Jersey Appellate Division permitted an employee to continue with his sexual orientation discrimination claim against his former employer, finding there is enough evidence to support his claim.

Ronald Savoie, who happens to be gay, had a distinguished career as a teacher at The Lawrenceville School for more than two decades. He lived in a house owned by the school with his partner, Richard Bierman. In 2002, eight school buildings and grounds employees entered Mr. Savoie's basement to repair a broken water main outside his house. In the basement, they saw some sort of sexual apparatus hanging from chains on the ceiling. Some of the employees also described seeing other items in the basement including a computer, a tripod without a camera, and videotapes.

A year later, when the school was replacing the condensing units and water heaters in the houses on Mr. Savoie's street, several of the employees who had been in his basement the year before indicated they were uncomfortable returning to his house. When they described to their supervisor what they had seen in Mr. Savoie's basement the year before, they listed additional items including a video camera, a television, a bed with mirrors, latex gloves, and diapers. Their boss repeated this information to the school's Dean of Faculty, its Associate Head Master, and its Chief Financial Officer (CFO).

The Dean then met with Mr. Savoie, gave him a pre-written resignation letter, and told him he would be fired unless he agreed to resign. According to Mr. Savoie, the Dean accused him of transmitting sexually explicit images over the Internet, and indicated he could not trust him with students as a result. Although Mr. Savoie signed the resignation letter, he attempted to rescind it the next day. The school rejected his attempt to withdraw his resignation.

Mr. Savoie then sued the school and several of its employees, claiming they fired him because of his sexual orientation, in violation of the New Jersey Law Against Discrimination (LAD). In response, the school claimed it asked Ms. Savoie to resign because it believed he was sending sexually explicit pictures of activities taking place in his basement over the Internet, in violation of the school's standards of personal and professional behavior, which it claims jeopardized its reputation. The trial court eventually dismissed Mr. Savoie's case, concluding that even if he did not actually send sexually explicit materials over the Internet, the school reasonably believed he had done so and legitimately fired him as a result.

However, in Savoie v. Lawrenceville School, the Appellate Division reversed. It ruled that although a jury could reach the same conclusion as the trial judge, it also could determine that the school would not have reacted the same way if Mr. Savoie was heterosexual. The appellate court relied on the fact that (1) the school relied on the secondhand information from the supervisor of the employees who were in Mr. Savoie's basement instead of conducting a proper investigation; (2) Mr. Savoie disputes the school's claim that he admitted sending sexually explicit images over the Internet; (3) the school's Associate Head Master made a disparaging comment about Bierman's lifestyle, thereby implicitly criticizing Mr. Savoie's lifestyle; and (4) the school looked the other way when a high ranking administrator resumed an adulterous affair even after he had been warned the affair violated the school's policy regarding personal and professional behavior and was grounds for termination. Accordingly, the Appellate Division sent Mr. Savoie's case back to the trial court for a trial.

Continue reading "New Jersey Court Reverses Dismissal of Sexual Orientation Discrimination Case" »

Last month, the Third Circuit Court of Appeals recognized that an employee does not need to have any evidence of discrimination before she can present her case to a jury. The Third Circuit is the federal court that handles appeals from New Jersey, Pennsylvania, Delaware and the Virgin Islands.

The employee who brought the case, Mary Burton, worked for Teleflex Inc. as a Vice President of New Business Development. On June 3, 2008 she got into a disagreement with her supervisor, Edward Boarini. Mr. Boarini claims Ms. Burton resigned during the meeting. In contrast, Ms. Burton claims she mentioned the possibility of resigning, but did not actually resign. At the time, Ms. Burton was 68 years old.

According to Ms. Burton, she did not report to work the next two days because she was upset about the meeting. She then took a preplanned vacation. On the day she was scheduled to return to work, Teleflex sent her a letter indicating it was accepting her resignation.

After her lawyer unsuccessfully attempted to negotiate a severance package, Ms. Burton filed a lawsuit claiming the company's decision to fire her was age discrimination in violation of the Age Discrimination in Employment Act (ADEA), and gender discrimination in violation of Title VII of the Civil Rights Act of 1964. But the District Court dismissed Ms. Burton's case. It found she voluntarily resigned, and therefore could not pursue a wrongful termination claim. It also found that even if she did not intend to resign, there was no evidence the company fired her because of her age or gender, rather than because it believed she had resigned.

But on appeal, the Third Circuit reversed. It found that since there is a factual dispute whether Ms. Burton actually resigned, a jury needs to decide whose version of the events is true. It explained that a jury can conclude Ms. Burton was fired based on her testimony that she never said she was resigning, as well as the fact that she never tendered a resignation letter, never told anyone she was resigning, and the company merely took Mr. Boarini's word that she had resigned without confirming it with her.

The Third Circuit further ruled that a jury can find Teleflex's decision to fire Ms. Burton because of her age or gender even though there is no evidence of discrimination. It explained that one way an employee can prove her case is by pointing out "weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions" in the employer's explanation for terminating her. In essence, it ruled that a jury can find Teleflex lied when it claimed it believed Ms. Burton had resigned, and can conclude the reason the company lied was to cover up age or gender discrimination. The Third Circuit's opinion in Burton v. Teleflex Inc. is published, meaning it is a binding legal precedent.

Continue reading "Third Circuit Finds No Evidence of Discrimination Necessary to Prove Discrimination Case" »

A federal judge in New Jersey recently dismissed an employee's discrimination lawsuit on the basis that the New Jersey Law Against Discrimination (NJLAD) does not apply to New Jersey residents who work outside of New Jersey. The employee, Blaise A. McGovern, is a resident of New Jersey. He worked for Southwest Airlines as a ramp supervisor at Philadelphia International Airport. He claims Southwest subjected him to abusive, harassing, and homophobic conduct. After Mr. McGovern reported the harassment to his supervisors, he received harassing telephone calls and text messages. After he filed a written harassment complaint, Southwest Airlines fired him.

Mr. McGovern sued Southwest under the NJLAD, alleging harassment and wrongful termination. Although the judge's opinion in McGovern v. Southwest Airlines does not say it, Mr. McGovern presumably claimed Southwest engaged in sexual orientation discrimination.

Southwest asked the court to dismiss Mr. McGovern's case. It argued that the NJLAD does not apply because Mr. McGovern worked for it exclusively in Pennsylvania. In response, Mr. McGovern argued that even though he did not perform any work for Southwest in New Jersey, the NJLAD still applies since some of the harassment occurred in New Jersey. For example, he received many of the harassing telephone calls and text messages while he was at home in New Jersey.

In granting Southwester's motion to dismiss the case, the judge explained that under New Jersey law a judge normally has to apply the employment laws of the state where the employee worked. He explained this rule protects companies from the "potential unfairness of having to comply with several different" sets of employment laws simply because their employees happen to live in different states. However, the judge noted there are exceptions to this general rule for employees who have "non-trivial" job duties in New Jersey. However, merely performing a small portion of your work in New Jersey is not enough for the NJLAD to apply. Since Mr. McGovern had not performed any work for Southwest in New Jersey, the judge rule that the NJLAD does not apply to him.

As discussed in a previous article, New York has a very different rule to determine whether the New York Human Rights Law (NYHRL) applies to an employee who works outside of New York. Specifically, the NYHRL applies to employees who live in New York or when discrimination had an impact in New York even if the employee never worked in New York. As a result, the NYHRL applies to a much broader group of employees than the NJLAD.

Continue reading "Court Rules New Jersey Law Against Discrimination Does Not Apply to New Jersey Resident Who Worked in Pennsylvania" »

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" »

Earlier this year, New York's Court of Appeals dismissed a wrongful termination lawsuit brought by a Compliance Officer who objected about an unethical stock transaction by the company's President and Chief Executive Officer. In doing so, New York's highest court refused to extend an exception to the employment at-will doctrine. Employment at-will is the general rule that a company can fire an employee for any reason, or even for no reason at all. Although there are many exceptions to employment at-will, such as anti-discrimination laws, New York does not have a whistleblower law that would have protected this employee.

Specifically, in Sullivan v. William F. Harnisch, Joseph Sullivan was a partner in two related hedge fund companies, Peconic Partners LLC and Peconic Asset Managers LLC. He also held several other job titles, including Executive Vice President, Chief Operating Officer and Chief Compliance Officer. Mr. Sullivan objected about apparent improper and unethical stock sales by the company's Chief Executive Officer and President, William Harnisch. Peconic fired Mr. Sullivan within days after he made this complaint. He then sued, claiming Peconic's decision to fire him was retaliation in violation of the company's Code of Ethics.

In an earlier case, Murphy v. American Home Prods. Corp., the New York Court of Appeals found an exception to employment at-will for a lawyer who objected about accounting improprieties at his law firm. The Court allowed the attorney to proceed with his wrongful discharge case. It found there is an implied agreement between attorneys and their law firms that they will each follow professional ethical standards, and that American home Products violated that agreement when it fired Mr. Murphy.

However, in Sullivan the Court of Appeals refused to expand that rule to protect Mr. Sullivan. It indicated that although Murphy is not necessarily limited to the relationship between lawyers and law firms, there needs to be a uniquely close connection between the employment relationship and an ethical obligation that makes the two "incapable of separation." It found no such relationship between a Compliance Officer and the hedge fund for which he works. It also found there is nothing express or implied in Peconic's Code of Conduct that prohibits the company from firing an employee for reporting an unethical stock transaction. Accordingly, it found Mr. Sullivan did not have a legal claim, and dismissed his case

Continue reading "New York's Highest Court Refuses to Expand Exception to Employment At-Will" »

Last week I discussed Colicchio v. Merck & Co., Inc., a case involving an employee who claims her employer Justified Eliminating Her Job by Reducing Her Job Duties After Her Maternity Leave. The employee in that case, Kerri Colicchio, also claims her employer failed to promote her because of her gender and pregnancy, and retaliated against her for objecting to violations of the New Jersey Law Against Discrimination (LAD).

The judge allowed Ms. Colicchio to proceed with her claim that the company failed to promote her to the position of Vice President of Global OE. Ms. Colicchio testified that her supervisor told her she was not being considered for that position on an interim basis expressly because she was about to go out on a maternity leave. The judge found this was not "smoking gun" evidence since the comment involved the interim position, and Ms. Colicchio was suing Merck for failing to offer her the job on a permanent basis. However, he found the comment showed the company used Ms. Colicchio's pregnancy as an important negative factor in making employment decisions about her.

The judge also found Merck's justification for its decision not to promote Ms. Colicchio was not a legitimate, non-discriminatory reason. Specifically, Merck claims it decided to consider only external job candidates for the position. The judge called this explanation "barely more than no reason at all," since the company did not indicate why it decided not to consider internal candidates. This is noteworthy, since it potentially means Merck does not have a valid defense to Ms. Colicchio's claim that it failed to promote her because of her gender and pregnancy.

However, the court dismissed Ms. Colicchio's retaliation claim. It explained that to be protected by the LAD, an objection has to either expressly or implicitly indicate that the company treated an employee differently based on a legally protected category. For example, an employee who objects to race, age, or gender discrimination would be legally protected from retaliation under the LAD. However, when Ms. Colicchio made her internal complaints, she only indicated she was being treated unfairly, without stating or implying she believe the unfair treatment was due to her gender or pregnancy. As a result, the Judge ruled that Ms. Colicchio does not have a valid retaliation claim.

Continue reading "Decision to Seek Outside Job Candidate Isn't Legitimate Reason Not to Promote Employee" »

Last month, a federal judge in New Jersey allowed a group of employees to proceed with their class action age discrimination lawsuit even though they do not claim the company hired younger employees to replace them.

In Bratek v. TD Bank, NA, four customer service representatives, Edna Bratek, Diane Deluca, Lois Skoff, and David Steinberg, claim TD Bank fired them because of their age. They were each over 60 years old when TD Bank included them in a reduction in force. They sued, claiming the company targeted older employees, in violation of the New Jersey Law Against Discrimination.

TD Bank moved to dismiss the case, claiming the employees did not set forth facts which, if true, would prove age discrimination. In particular, they argued that the lawsuit does not even allege the Bank hired younger customer service representatives to replace the older employees it fired. The Court agreed that the employees did not claim the Bank had replaced them with younger employees, but it found they could proceed with their case on another theory. It recognized that an employee can set forth a claim of discrimination in a case involving a reduction-in-force by alleging the company retained one or more younger employees to perform his job. Thus, for example, an employee can claim the company gave his job duties to younger employees who it chose not to lay off.

TD Bank also argued that even though the lawsuit named 18 customer service employees under 40 years old who the company retained after the reduction-in-force that was a small fraction of the customer service employees it retained, is statistically meaningless, and is not enough to support an inference of age discrimination. The company claimed this was particularly true since the lawsuit is a class action filed on behalf of hundreds (and potentially as many as a thousand) older customer service representatives who lost their jobs in the reduction-in-force.

The district judge rejected this argument. He recognized it would be extremely difficult for an employee filing a class action discrimination lawsuit to list the names and ages of a large percentage of the employees who the company retained. It also recognized that a lawsuit only needs to set forth facts that are compatible with discrimination to support an inference of discrimination. Accordingly, he concluded that providing the names and ages of several younger customer service representatives who the Bank retained was enough for the employees to proceed with their case.

Continue reading "New Jersey Court Permits Age Discrimination Lawsuit Because Company Retained Younger Employees" »

A federal judge in New Jersey recently ruled that employees can sue the Port Authority of NY & NJ under the New Jersey Law Against Discrimination ("LAD"). The decision is noteworthy because previous cases have ruled that the Port Authority cannot be sued under state employment laws. The LAD is an employment law that prohibits many different kinds of workplace discrimination, harassment and retaliation in New Jersey.

The case was filed by Donald Burke, a lawyer for Port Authority for 26 years. Mr. Burke claims the Port Authority retaliated against him after he (1) refused to lower the performance ratings of two older female employees, Shirley Spira and Dolores Ward, who claimed the Port Authority was underpaying them due to their age and gender, and (2) refused to raise the performance ratings of two of their male peers. He also alleges he objected when Ms. Spira and Ms. Ward were unfairly disciplined, and again when they were fired in a supposed reduction in force.

The retaliation Mr. Burke claims he experienced includes his boss disciplining him for supposedly not doing his job properly and accusing him of not being a "team member." He also claims his boss threatened to fire him because he objected to the Port Authority's decision to fire Ms. Spira and Ms. Ward. He further alleges the Port Authority effectively demoted him by eliminating his position as its top litigator, moved his office to an area filled with older lawyers that employees refer to as "death row," and stopped providing him the resources he needed to do is job. Eventually, the Port Authority recommended firing Mr. Burke. Instead, he resigned. He claims the Port Authority constructively discharged him, meaning it forced him to resign by harassing him and retaliating against him. He eventually filed a lawsuit asserting numerous claims against the Port Authority, including a retaliation claim under the LAD.

The Port Authority is a bi-state agency that was jointly created by New York and New Jersey. The New Jersey Supreme Court has previously ruled that bi-state agencies only can be sued under a state law if (1) the law creating the Port Authority specifically allows it, or (2) the state law is "substantially similar" to a law it the other state. Other cases have ruled that since the LAD is not substantially similar to the New York Human Rights Law (NYHRL), the Port Authority cannot be sued under either the LAD or the HYHRL.

However, in Burke v. Port Authority of NY & NJ, the Court did not discuss whether the LAD and the NYHRL are substantially similar laws. Instead, it ruled that since the purpose of the LAD is to prevent discrimination, and there is nothing in it saying otherwise, the LAD must have been intended to cover the Port Authority. The Court also relied on a 1951 amendment to the law that created the Port Authority, which says that New York and New Jersey agree to allow the agency to be sued for "tortious acts" (meaning personal injuries and similar wrongful acts) in the same way as a private corporation. It therefore allowed Mr. Burke to proceed with his LAD claim.

Continue reading "Court Allows Lawyer to Pursue Claim Against Port Authority Under New Jersey Law Against Discrimination" »

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" »

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 McKenna 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.

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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.

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