A recent decision by New Jersey’s Appellate Division demonstrates that under the right circumstances an employee can prove disability discrimination from the fact that her employer fired her shortly after she had surgery.

Employee prvails in age and disability discrimination appealAda Caballero worked for Cablevision Systems Corporation for 15 years.  In 2013, she was divorced.  A few months after her divorce was finalized, Ms. Caballero submitted a copy of the divorce judgment to the company’s human resources department.  However, Cablevision did not remove her ex-husband from its health insurance plan.

On Ms. Caballero’s 2014 performance evaluation, Cablevision gave her a rating of “strong performance.”

A recent decision by the Third Circuit Court of Appeals helps clarify who is a “similarly situated” employee in discrimination cases under the New Jersey Law Against Discrimination (“LAD”).  This is important since one way to prove discrimination is by showing the employer treated other similarly situated employees more favorably than the employee who is claiming he or she was the victim of discrimination.

Age discrimination at work.Santos Andujar worked for General Nutrition Corporation (“GNC”) as a store manager for 13 years. After failing the company’s Critical Point Audits four years in a row, he received a failing score through the company’s Performance Evaluation Process (“PEP”).  On the day Mr. Andujar received his failing PEP score, GNC placed him on a “Red Store Action Plan” which gave him days to improve his job performance. Approximately one month later, the company fired him for failing to meet the Action Plan.  GNC replaced Mr. Andujar, who was 57 years old, with someone in his twenties.  Mr. Andujar then filed a lawsuit alleging that GNC had engaged in age discrimination in violation of the LAD.

The case went to trial.  GNC argued that it fired Mr. Andujar because of his poor performance and not because of his age.  However, Mr. Andujar presented evidence that five other store managers between 25 and 34 years old had failing PEP score, but GNC did not put any of them on an Action Plan, let alone fire them.

A recent decision by New Jersey’s Appellate Division recognizes that an employer can violate the New Jersey Law Against Discrimination (“LAD”) if it discriminates against a disabled employee because he uses medically prescribed marijuana to treat a disability outside of the workplace.

Law Prohibits Discrimination for Medical Marijuana Use Outside of WorkJustin Wild worked as a licensed funeral director for Carriage Funeral Holdings, Inc. (“Carriage”).  Mr. Wild has cancer.  Pursuant to New Jersey’s Compassionate Use of Medical Marijuana Act, Mr. Wild has been prescribed marijuana to help with the associated pain.  The Compassionate Use Act decriminalizes the use of marijuana for certain medical reasons including pain relief for individuals with cancer.

In 2016, while working for Carriage, Mr. Wild was in a car accident and had to be taken to the emergency room.  He was prescribed pain medication and released from the hospital the same day.  At home, Mr. Wild took the pain medication and used medical marijuana.

Female employee on family leave for newborn childLast month, New Jersey amended its Family Leave Act to expand the protections it offers to employees in several key ways.  The Family Leave Act is a law that entitles covered employees to take up to 12 weeks off from work over a 24 month period to care for a family member with a serious illness, for childbirth or adoption, or to care for a newborn or newly adopted child.  It requires employers to reinstate employees at the end of a covered family leave, and prohibits employers from retaliating against employees because they took time off pursuant to the Act.

Some of the new protections of the Family Leave Act went into effect immediately, but others do not go into effect until June 1, 2019.  For example, the Family Leave Act currently only applies to employees who work for employers with 50 or more employees.  Starting on June 1, 2019, it will apply to employers that have at least 30 employees.  As a result, many more employees will be covered by the Act.

Similarly, the term “family member” currently includes only children, parents, spouses and civil union partner.  Effective June 1, 2019, family member also will include parents-in-law, siblings, grandparents, grandchildren, domestic partners, “any other individual related by blood to the employee” and anyone else with whom the employee can show he or she has a “close association . . . which is the equivalent of a family relationship.”

Yesterday, Governor Phil Murphy signed into law a very important amendment to the New Jersey Law Against Discrimination (“LAD”).

Employees Cannot Waive Anti-Discrimination Rights in Advance

Waivers of discrimination rights in employment contracts are void.Under the amendment, any provision in an employment contract that requires employees to waive in advance any “substantive or procedural right or remedy relating to a claim of employment discrimination, retaliation, or harassment” violates New Jersey’s public policy and is unenforceable.  Similarly, employers no longer can require employees to prospectively waive any of their rights or remedies under the LAD, “or any other statute or case law.”  However, this provision does not apply to the terms of union collective bargaining agreements.

Sexual harassment at workA recent unpublished opinion from the New Jersey Appellate Division holds that employees cannot waive in advance their right to recover punitive damages under the New Jersey Law Against Discrimination (“LAD”).

Milagros Roman worked for Bergen Logistics LLC as a human resources generalist. She claims that her immediate boss, Human Resources Director Gregg Oliver, made sexual advances toward her.  She further alleges that Mr. Oliver retaliated against her by firing her because she complained about the sexual harassment.

Ms. Roman filed a lawsuit against Bergen and Mr. Oliver, claiming they harassed and retaliated against her in violation of the LAD.  The defendants filed a motion to dismiss her case and refer it to arbitration.  They relied on the fact that when Bergen hired Ms. Roman, she signed an arbitration agreement that required her to resolve any disputes relating to her employment relationship in binding arbitration rather than in court.  That agreement includes a provision which states that: “BY SIGNING THIS AGREEMENT YOU AND COMPANY ARE WAIVING ANY RIGHT, STATUTORY OR OTHERWISE, TO A TRIAL BY JURY AND TO PUNITIVE AND EXEMPLARY DAMAGES.”

In a recent opinion, a federal judge ruled that nine retired Jersey City Police Sergeants who prevailed in their employment discrimination and retaliation lawsuits should have their economic damages awards increased to offset the negative tax consequences of receiving a lump sum payment rather than receiving higher salaries and pensions over time.

Discrimination Lawsuit Against Jersey CityThe opinion stems from two lawsuits that were consolidated for purposes of trial.  Between the two cases, nine retired Police Sergeants sued Jersey City, its former Mayor, Jerramiah Healy, and its former Police Chief, Robert Troy, for failing to make any promotions to Lieutenant from a 2003-2006 promotional list.  They alleged Jersey City’s decision to do so constituted discrimination based on political affiliation and expression discrimination, in violation of the First Amendment, and was retaliation because one of the Sergeants, Valerie Montone, objected about gender discrimination, in violation of the New Jersey Law Against Discrimination (“LAD”).

The case went to trial and the jury found that Jersey City had discriminated and retaliated against all nine of the plaintiffs.  It awarded economic damages totaling more than $2.2 million, or an average of more than $240,000 per person.

In a recent opinion, the Third Circuit Court of Appeals ruled that an employer’s failure to promote an employee was not legally actionable discrimination where the employer promoted the same individual to the same job approximately one month later.

Evon Grossberg worked for the Hudson County Department of Social Services as a Human Resources Specialist.  Ms. Grossberg is African American.  In July 2013, she applied for a promotion to the position of Training Technician.  At the time, Ms. Grossberg was 58 years old.

Employee passed up for promition brings discrimination claimIn early August 2013, Hudson County promoted another employee who was in her low to mid-twenties and Egyptian, rather than African American, to the position of Training Technician.  When Ms. Grossberg asked her supervisor why she had not received the promotion, her supervisor told her to speak to her union representative. Ms. Grossberg then filed a complaint with her union representative.  She also submitted an online intake form to the United States Equal Opportunity Commission (“EEOC”) as part of the process to file a Charge of Discrimination.

Workplace bullying can violate employee handbookUnder New Jersey law it is unlawful for an employer to harass an employee because she belongs to a legally-protected category, such as because of her gender, age, race or disability.  But the law does not necessarily prohibit a boss from bullying or indiscriminately harassing other employees.

Nonetheless, earlier this year, in Maselli v. Valley National Bankcorp., New Jersey’s Appellate Division recognized that under certain circumstances an employee can sue her employer for bullying in violation of a company’s anti-harassment policy.

By way of background, almost 25 years ago the New Jersey Supreme Court established that employee handbooks and other similar policies are presumed to be binding contracts.  However, the Court created an exception for policies that include prominent disclaimers that make it clear they document is not an enforceable contract.  As a result, most employee handbooks now include bold disclaimers stating that they are not contracts.

Arbitration is widely considered to be less favorable to employees and more favorable to businesses than jury trials.  As a result, many employers require their employees to sign arbitration agreements as a condition of getting hired or keeping their jobs.  In other words, employers try to force employees to give up their right to sue in court and have their cases decided by a jury.

Court finds forced arbitration argeement violates anti-discrimination lawBut a recent trial court opinion concludes that firing an employee because she refused to sign an arbitration agreement since she did not want to give up her right to a jury trial in any future discrimination lawsuit against her employer was an act of retaliation in violation of the New Jersey Law Against Discrimination (“LAD”).  The LAD prohibits employers from retaliating against an employee because she has “opposed any practice” protected by the LAD, or from coercing, intimidating or threatening anyone’s right pursuant to the LAD.

Jorvia Cator, an African American woman, began working for WRDC Corp. as a hotel reservation agent in March 2016.  Approximately one month later, WRDH implemented a new policy which required all employees to sign arbitration agreements that forced them to bring virtually any claim against the company in arbitration rather than in court.  Those agreements expressly stated that the employee is waiving her right to a jury trial.

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