Articles Posted in Retaliation / Whistleblowing

Tax considerations in employment law settlementsWhen you settle an employment law case, typically most or all of the money you receive will be taxable.  Nonetheless, it is both common and important to discuss the tax allocation as part of the settlement negotiation, including what portion will be reported on an IRS form W-2, and what portion will be reported on a 1099.

While I am an employment lawyer rather than a tax expert, below is my understanding regarding the taxability of employment law settlements under federal law.  These issues can be complex and have significant consequences to you, so you should consult with a tax expert before you make any decisions.

W-2 Payments: Lost Wages

A recent unpublished opinion from New Jersey’s Appellate Division overturned a trial court decision dismissing his whistleblower claim under the Conscientious Employee Protection Act (“CEPA”).  The case serves as a reminder that close timing between a legally-protected activity and an adverse employment action can be powerful evidence to support a retaliation claim.

Joseph Silvestri was the Director of Information Technology (“IT”) for the Borough of Ridgefield.  When he discovered that someone had tampered with the Lightning Alert System at Willis Park, he reported it to the Ridgefield Police Department.  Paul Schaeffer, who is friends with a Ridgefield Councilman, Javier Acosta, was charged with tampering with the Lightning Alert System.  Mr. Silvestri subsequently was subpoenaed to testify in Mr. Schaeffer’s municipal court case, and was present in court for the trial, but did not actually end up testifying.

Court allows former Head of IT to pursue whistleblower claimShortly thereafter, the Ridgefield Council President, Russell Castelli, told Mr. Silvestri that he is not entitled to receive overtime compensation because he is the head of the IT Department.  Until then, Mr. Silvestri had been eligible to receive overtime compensation for approximately 20 years.  According to Mr. Silvesti, Councilman Acosta caused Ridgefield to stop compensating him for his overtime.

A recent decision by the United States District Court for the District of New Jersey recognizes that an employer filing a lawsuit against an employee because he asserted a discrimination claim against it can be an act of unlawful retaliation in violation of the New Jersey Law Against Discrimination (“LAD”) and Title VII of the Civil Rights Act of 1964 (“Title VII”).

Employer's lawsuit can be act of discrimination against employeeThe retaliation claim was asserted by Jean-Claude Franchitti and Vartan Piroumian, two former employees of Cognizant Technology Solutions Corporation and Cognizant Technology Solutions U.S. Corporation.  Mr. Franchitti was Cognizant’s Chief Architect and Assistant Vice President, and Mr. Piroumian was its Principal Architect and Enterprise Architect.

Mr. Franchitti and Mr. Piroumian each previously asserted discrimination and retaliation claims against Cognizant.  Mr. Franchitti filed a Charge of Discrimination with the United States Equal Opportunity Commission (“EEOC”) asserting age discrimination, national origin discrimination and retaliation, as well as a subsequent lawsuit in California asserting the same claims, a claim under the False Claims Act alleging the company was engaging in visa fraud, and a lawsuit in New York alleging retaliation.  Mr. Piroumian has filed two Charges of Discrimination against Cognizant with the EEOC alleging unlawful discrimination and retaliation.

A new decision from New Jersey’s Appellate Division recognizes that an employer can be liable for retaliating against an employee who filed an anonymous whistleblower complaint if the evidence supports the inference that it could have realized she was the one who filed the complaint.

Court finds whistlblower protected from retaliation after making anonymous call.For 14 years, Carol Smith worked for Konica Minolta Business Solutions (“KMBS”), primarily as a sales representative.  In 2018, Ms. Smith reported to her supervisors that over a million dollars of equipment had been shipped to a warehouse, and KMBS had recorded it as installed and paid employees a commission for selling that equipment, but the equipment actually remained in the warehouse and KMBS was improperly using it as collateral for bank loans.

Ms. Smith’s supervisors failed to address her complaint, and instead began harassing her.  Accordingly, she eventually reported the fraudulent activity anonymously, through KMBS’ employee whistleblower hotline.

A recent decision from the New Jersey Appellate Division decision recognizes that, under the right circumstances an employee can be protected by the Conscientious Employee Protection Act (“CEPA”) when she resigns because she is not willing to participate in her employer’s illegal conduct.  CEPA is New Jersey’s whistleblower law, which many courts have described to be the broadest such law in the nation.

Hope Moser worked for the Streamwood Company as the assistant property manager at the Madison Court apartments. Her immediate supervisor, Scott Leonard, was Streamwood’s regional manager and the son of Streamwood’s owner.

Employee protected by CEPA after refusing to provide false information on housing application formIn January 2021, Mr. Leonard told Ms. Moser that she should check “no” on all housing screening forms in response to the question whether the form was being completed as a Section 8 housing application. Ms. Moster objected because she believed doing so would violate the New Jersey Law Against Discrimination (“LAD”), which prohibits housing discrimination against prospective Section 8 tenants.

A decision from New Jersey’s Appellate Division recognizes that New Jersey’s whistleblower law, the Conscientious Employee Protection Act (“CEPA”), can apply to employees who work in other states.

Stephanie Halliday worked for Bioreference Laboratories, Inc., a company that provides diagnostic testing and related services.  Bioreference’s headquarters is in Elmwood Park, New Jersey. However, Ms. Halliday worked for it at a laboratory in Houston, Texas.

Employee working remotely for company in New JerseyLaboratory employee working remotely for NJ companyMs. Halliday objected to her supervisors that Bioreference was violating federal safety and health regulations and the Clinical Laboratory Improvement Amendments of 1988 (“CLIA”) in Texas.  Specifically, she emailed an employee in the company’s Quality Systems (“QS”) Department in New Jersey to report significant deficiencies with the performance of the staff in the Houston laboratory that caused her to lack confidence that patients’ test results would be valid.

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.

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.

Whistleblower reports Medicaid fraudIn a recent opinion, New Jersey’s Appellate Division reinstated Margaret Gatham’s whistleblower claim against Care One Management, LLC, its Executive Vice President, Elizabeth Straus, and its Deputy General Counsel, Thomas A. McKinney.

Ms. Gatham worked for Care One from 2005 until she resigned in July 2012.  In 2015, Care One’s Chief Strategy Officer, Timothy Hodges, contacted her to discuss her potentially returning to Care One based on her past success turning the facility around, including her success collecting money.  In August 2015, Ms. Gatham returned to Care One as its Director of the Shared Business Office.

In approximately September 2015, Ms. Gathman discovered that Care One had failed to return to Medicare, Medicaid and other entities and individuals, overpayments and security deposits for residents who had died, in violation of the Affordable Care Act.  In early 2016, Ms. Gatham reported this issue to her immediate supervisor.  Ms. Gatham came up with a plan for Care One to return the money.  Ms. Gatham indicated she was concerned about the company’s failure to return those funds, which she estimated could have been $13 million.  She also periodically updated members of the company’s senior management, including Ms. Strauss, about those plans.

New York expands whistleblower lawOn October 28, 2021, New York Governor Kathy Hochul signed in law an amendment to New York’s Whistleblower law, Labor Law Sections 740 and 741.

Prior to this amendment, New York’s Whistleblower Law has been very narrow and provided very limited protection.  That will change when the amendment goes into effect on January 26, 2022.

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