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Employer retaliates by searching employee's cellphoneA recent decision by the Third Circuit Court of Appeals allows an employee to proceed with his retaliation claim based on evidence suggesting his employer’s decision to search his cellphone was an excuse to try to find support to fire him in retaliation for asserting claims under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (“ADA”) and the Family & Medical Leave Act (“FMLA”).

Joseph Canada is Black and suffers from serious back problems including herniated discs and arthritis.  He worked for Samuel Grossi and Sons, Inc. for 10 years.  Mr. Canada claims Grossi’s management prevented him from accessing FMLA leave forms, and harassed him when he tried to take time off for his back issues.  He eventually obtained the forms on his own, and took FMLA leave. 

In March 2019, Grossi had a temporary layoff during which it laid off Mr. Canada for a day.  In response, Mr. Canada filed a claim of race and disability discrimination with the United States Equal Opportunity Commission (“EEOC”).  In June 2019, Mr. Canada filed a discrimination and retaliation lawsuit against Grossi under Title VII, the ADA and the FMLA.

A new ruling from the Appellate Division addresses when an employer can be liable for unlawful harassment by one of its employees toward a customer or patron.

The case was brought by Darien Cooper, who is gay.  Mr. Cooper received a massage at Rogo Brothers, Inc., which does business under the name Elements Massage (“Elements”).  The masseuse, Justine Middleton, asked Mr. Cooper about a tattoo on his arm.  During their ensuing conversation, Ms. Middleton told Mr. Cooper that she is Christian.  When Mr. Cooper later referred to his boyfriend, Ms. Middleton made demeaning and discriminatory comments about homosexuality.  For example, she told Mr. Cooper that gays “do not follow God’s design,” compared being gay with pedophilia, and implied she believes being gay is a choice.  Mr. Cooper found these comments humiliating.

Mr. Cooper sued Elements, alleging it engaged in sexual orientation discrimination against him in a “place of public accommodation,” in violation of the New Jersey Law Against Discrimination (“LAD”).  In addition to prohibiting workplace discrimination, the LAD also prohibits discrimination in places of public accommodation, such as a “retail shop, store, establishment, or concession dealing with goods or services of any kind.”  As a result, places like Elements cannot discriminate against their customers based on their sexual orientation (or, for that matter, based on their race, creed, color, national origin, ancestry, marital status, civil union status, domestic partnership status, sex, gender identity or expression, disability or nationality).

A recent decision by the District of New Jersey allows an employee’s reverse race discrimination claim to proceed to a trial.

Discrimination claim against StarbucksShannon Phillips worked for Starbucks Corporation for 13 years, most recently as a Regional Director of Operations.  In April 2018, a Caucasian store manager within Ms. Phillips’ district called the police to a Starbucks store where two African American men were in the store, but had not made a purchase.  The two men were arrested.

This racial profiling incident received national media attention, and resulted in protests outside the store where it occurred.  In response, Starbucks publicly vowed to take actions “to repair and reaffirm our values and vision for the kind of company that we want to be.”

Yesterday, the New Jersey Supreme Court clarified the “ABC test” used to determine if a worker is an employee or an independent contractor.  Specifically, it made it clear that just because someone works through their business is not enough to make them an independent contractor.

The case began with a random audit by the New Jersey Department of Labor (“DOL”).  The DOL found 16 employees had been misclassified as independent contractors.  On appeal, East Bay Drywall (“East Bay”) contested that 11 of them were employees.

The ABC test applies to determine if a worker is an employee or an independent contractor for purpose of several specific laws, including New Jersey’s unemployment compensation law, Wage Payment Act, Wage and Hour Law.  Under it, a worker is an employee unless the company he or she worked proves all three of the following:

A recent ruling from New Jersey’s Appellate Division allows members of the Rutger’s women’s basketball team to continue with their lawsuit under the New Jersey Law Against Discrimination (“LAD”).

Rutger's Women's Basketball Players Win Discrimination AppealSharee Gordon, Adayshia McKinnon, Jade Howard, Arianna Williams and Sarah Schwartz were students at Rutgers-Newark University and members of the women’s basketball team. Gordon, Howard and Williams each identify themselves as African-American lesbians; McKinnon identifies as Black and bisexual; and Schwartz identifies as Hispanic and heterosexual.

During the 2014-15 school year, the team’s head coach, Kevin Morris, was on a medical leave.  When Gordon learned Rutgers was considering naming William Zasowski as the interim head coach, she raised concerns that he had used discriminatory language to refer to members of the men’s basketball team when he was its assistant coach.  Specifically, she alleged he referred to members of the men’s team as “p*ssies,” “b*tches,” and “retard[s]” and asked if they were on their “period.”  Rutgers nonetheless selected Zasowski as the interim head coach.

Last week, in Savage v. Township of Neptune, the Appellate Division ruled that a 2019 amendment to the New Jersey Law Against Discrimination (“LAD”) does not prohibit parties from entering into non-disparagement clauses.

Female police officer accuses Police Department of discriminationThe Appellate Division’s opinion involved Christine Savage, a Sergeant for the Township of Neptune Police Department.  Sgt. Savage brought an employment discrimination case against Neptune, Police Director Michael J. Bascom, Police Chief James M. Hunt, in which she alleged they engaged in sexual discrimination, harassment, and retaliation in violation of the LAD, the New Jersey Civil Rights Act (“NJCRA”), and the free speech provision of the New Jersey Constitution.

Sgt. Savage eventually settled her case.  The settlement agreement included a mutual non-disparagement provision which prevented the parties from making any statements “regarding the past behavior of the parties, which statements would tend to disparage or impugn the reputation of any party.”

Black Lives MatterA recent opinion by New Jersey’s Appellate Division finds that an employee cannot bring a retaliation claim against a private employer for firing her for posting racially insensitive statements on Facebook.

Heather J. McVey was a Corporate Director of Customer Service for AtlantiCare Medical System Incorporated and Geisinger Health System Incorporated.  Ms. McVey was an employee at-will, meaning AtlantiCare had the right to fire her for any reason, or for no reason at all, as long as it did not violate the law.

During the protests following the murder of George Floyd, Ms. McVey engaged in a discussion on Facebook about the Black Lives Matter movement.  She expressed her opinion that Black Lives Matter is “racist” and “causes segregation,” and that Black citizens were “not dying” but rather “killing themselves.”  Ms. McVey identified herself on her Facebook profile as a Corporate Director at AtlantiCare.

As a New Jersey employment lawyer, I have had numerous clients tell me their employer has asked or required them to undergo a fitness-for-duty examination.  However, anti-discrimination laws limit when an employer has the right to send an employee to a medical exam.

Protection Under Anti-Discrimination Laws

The Americans with Disabilities Act (“ADA”) and the New Jersey Law Against Discrimination (“LAD”) both prohibit employers from sending employees for a fitness-for-duty exam unless the exam is “job-related” and “consistent with business necessity.”

A recent unpublished decision from the Third Circuit concludes that an employer can fire an employee because it honestly believes she abused her Family & Medical Leave Act (“FMLA”) leave.

Marsha VanHook worked as a patient representative for Cooper Health System for approximately nine years.  One of her sons has attention deficit hyperactivity disorder (“ADHD”), severe oppositional defiance disorder, chronic depression, and anxiety.

Appeal denied in Family & Medical Leave Act ("FMLA") lawsuitFor many years, Cooper allowed Ms. VanHook to take an intermittent FMLA leave to care for her son when he was not in school or supervised by someone else. However, Ms. VanHook’s supervisor eventually heard from another employee that Ms. VanHook might be using her FMLA leave inappropriately.  In addition, Cooper’s Human Resources Department heard that Ms. VanHook was often using her FMLA Leave immediately before a weekend or another day off, which raised suspicion.

A recent decision from New Jersey’s Appellate Division recognizes it can be retaliation in violation of the Conscientious Employee Protection Act (“CEPA”) for a police department to harass one of its members because he objected to a new policy he reasonably believed is an illegal arrest quota system.

Police officer experiences retaliation for objecting to quota systemCalvin Anderson has been a member of the East Orange Police Department for over 20 years.  His supervisor, Anthony Cook, instituted a “productivity improvement system” that Anderson believed violated a New Jersey law that prohibits police departments from instituting arrest quota systems.  Anderson, who was a lieutenant at the time, complained about the productivity improvement system and refused to implement it.

Anderson filed a lawsuit against the Department and Cook, alleging they retaliated against him in violation of CEPA.  He claims Cook retaliated against him by investigating him for neglect-of-duty regarding his supposed failure to complete an accident-reconstruction report.  Even though the investigating officer concluded Anderson did nothing wrong, Cook then filed a complaint to the Internal Affairs Department about the same incident.  In addition, Cook required Anderson to increase his productivity in terms of stops and arrests in a crime zone, and issued him a written warning notice for failing to do so.  Cook also threatened to bring neglect-of-duty charges against Anderson for failing to file an incident report about another officer, even though doing so was the responsibility of a sergeant.  In addition, Cook ordered another captain to investigate Anderson, and threatened to issue a written warning to Anderson, for failing to report to a lineup for a July Fourth celebration.  Likewise, Cook berated Anderson in front of the mayor for supposedly neglecting his duty and wasting taxpayer dollars, and frequently assigned him to the midnight shift, which prevented him from working traffic details, which Anderson claims caused him to lose $10,000 to $12,000 in compensation.

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