New Jersey Employment Lawyer Blog

Unemployment Benefits Do Not Reduce Damages from Discrimination

March 21, 2017 | by Jonathan I. Nirenberg

Earlier this month, in a precedent-setting opinion, New Jersey’s Appellate Division ruled that the unemployment insurance benefits a former employee receives after being fired do not reduce the amount of lost wages the employee can recover in an employment discrimination lawsuit.

Rex Fornaro worked as a flight instructor for Flightsafety International, Inc. After Flightsafety fired him, he brought a disability discrimination and retaliation lawsuit against it under the New Jersey Law Against Discrimination (“LAD”).

After a trial, a jury concluded that Flightsafety had discriminated against Mr. Fornaro because he is disabled and because he requested a reasonable accommodation for his disability. The jury awarded him $83,000 in past economic damages (“back pay”), but did not award him anything for his alleged emotional distress. A judge subsequently awarded Mr. Fornaro’s lawyers a total of approximately $380,000 in attorneys’ fees and costs.

Third Circuit Affirms Injunction in Non-Compete Case

February 24, 2017 | by Jonathan I. Nirenberg

Last October, I discussed a case in which the District of New Jersey issued an injunction which enforced ADP, LLC’s non-compete agreement with two of its former employees. Earlier this month, the Third Circuit Court of Appeals affirmed that ruling.

Non-Compete Agreement in Online FormTerms Agreement ConceptADP claims that Jordan Lynch and John Halpin violated the non-compete agreements they entered into when they accepted stock awards from the company. Specifically, ADP provided the stock awards, its stock award plan and a non-compete agreement to Mr. Lynch and Mr. Halpin online. Before they could accept their stock awards, they had to check a box simply confirming they had read all three documents, although it did not explicitly state that they were agreeing to the terms of those documents.

The non-compete agreement indicates that an employee cannot work for a competitor of ADP, or solicit business from any of its current and prospective clients, for 12 months after he stops working for the company. Nonetheless, when Mr. Lynch and Mr. Halpin left ADP they began working for one of its competitors, Ultimate Software.

Court Overturns Jury Waiver and Fee Award to Employer Under CEPA

February 14, 2017 | by Jonathan I. Nirenberg

In a recent published opinion, New Jersey’s Appellate Division reversed a trial court’s rulings that an employee had waived his right to a jury trial under New Jersey’s whistleblower law, the Conscientious Employee Protection Act (“CEPA”).

Greg Noren worked as a Relationship Manager for Heartland Payment Systems, Inc. for more than seven years. During that time, he signed two employment agreements that indicated he waived “any right to trial by jury in any suit, action or proceeding under, in connection with or to enforce this Agreement.” Both contracts also included provisions stating that, in any lawsuit “arising out of or related to this Agreement, the successful party shall be awarded . . . costs of suit, fees of experts and reasonable attorneys’ fees against the unsuccessful party.”

After Heartland fired him, Mr. Noren filed a lawsuit in which he claimed the company had breached his employment agreement and retaliated against him in violation of CEPA.

Employer’s “Honest Belief” Defeats FMLA Retaliation Claim

February 7, 2017 | by Jonathan I. Nirenberg

Last week, the Third Circuit Court of Appeals ruled that an employee cannot establish a retaliation claim under the Family & Medical Leave Act (“FMLA”) if his employer honestly believed he abused his right to take time off under the FMLA.

Frederick Capps worked as a mixer for Mondelez Global, LLC. Mr. Capps suffers from Avascular Necrosis, a condition involving a “loss of blood flow, severely limiting oxygen and nutrient delivery to the bone and tissues, essentially suffocating and causing death of those cells.” As a result, Mr. Capps has arthritis in both hips and had double hip replacement surgery in 2004. He also periodically experiences severe pain that can last for weeks. Accordingly, he requested and Mondelez granted him an intermittent FMLA leave, meaning he could take time off when it was medically necessary.

On February 14, 2013, while he was on an FMLA leave, Mr. Capps went to a local pub for dinner and drinks. On his way home, he was arrested for drunk driving. He was released from jail the next morning, Friday, February 15, and took that day off as FMLA leave. He returned to work on Monday, February 18.

Prison Guard Cannot Wear Khimar as Accommodation for Religious Belief

January 24, 2017 | by Jonathan I. Nirenberg

A recent published opinion from the New Jersey Appellate Division recognizes that although the New Jersey Law Against Discrimination (“LAD”) requires employers to provide reasonable accommodations for employees’ sincerely held religious belief, that requirement does not apply when the accommodation would impose an undue hardship on the employer.

Linda Tisby began working for the Camden County Correctional Facility (“Camden”) in 2002. In 2015, she began practicing the Sunni Muslim faith. In May 2015, she came to work wearing a Muslim khimar, which is a tight fitting head covering, but without a veil. However, Camden has a policy regarding uniforms which prohibits employees from wearing any hats other than the ones issued by their departments. Accordingly, Ms. Tisby’s supervisor told her she was violating Camden’s uniform policy, and could not work unless she removed her khimar. When Ms. Tisby refused, her supervisor sent her home. After this happened three more times, Camden suspended her for two days.

Camden then told Ms. Tisby that it considered her to have requested an accommodation for her religious belief pursuant to the LAD. But while the employer recognized Ms. Tisby had a sincerely held religious belief, it denied her request on the basis that it would “constitute an undue hardship to the Department to allow an officer to wear head-coverings or other non-uniform clothing.” Since Ms. Tisby refused to work without wearing her khimar, Camden fired her.

Assemblyman Hopes to Improve New Jersey Paid Family Leave

January 9, 2017 | by Jonathan I. Nirenberg

According to a recent report in the New Jersey Law Journal, New Jersey State Assemblyman Reed Gusciora is planning to propose legislation to improve paid family leave benefits.

The New Jersey Paid Family Leave Act, which was passed in 2009, permits eligible employees to take up to 6 weeks of paid family leave per year. Employees who take family leave receive up to two-thirds of their compensation, with a maximum benefit of $615 per week.

Assemblyman Gusciora is seeking to add protection against retaliation for employees who take time off under the Paid Family Leave Act. Although there are many other statutes that protect employees against retaliation under certain circumstances, currently there is no such protection in the Act.

New Jersey and New York Raise Minimum Wage

January 4, 2017 | by Jonathan I. Nirenberg

Starting on January 1, 2017, the minimum wage has increased in New York State, New York City and New Jersey. Specifically:

New Jersey

The minimum wage has increased from $8.38 to $8.44 per hour as a cost of living increase. Under New Jersey law, there will be additional cost of living increases in future years.

Employee’s Disability Harassment Claim Can Proceed to Trial

December 29, 2016 | by Jonathan I. Nirenberg

Earlier this month, the United States District Court for the District of New Jersey permitted an employee to continue with his claim that his employer harassed him because he is disabled, but dismissed his other disability discrimination claims.

Francis Gavin worked for Haworth, Inc. in various sales roles. Mr. Gavin has a back disability which required him to undergo several surgeries and time off from work. Most recently, he took off two weeks after lumbar spinal fusion surgery in August 2012. He returned to work gradually, with medical restrictions for approximately 4 ½ months.

After he returned to work, Mr. Gavin’s supervisor, Henry Pizoli, frequently made disparaging comments about his back condition. For example, he commented about the fact that Mr. Gavin had to wear a duragesic patch and a back brace, saying it “doesn’t look good in front of customers” and asked him in front of a customer if he would be “able to work normally without this [back condition] being the center of attention.” Mr. Pizoli also told Mr. Gavin he “should have never come back to work” after his surgery, and repeatedly suggested he should “leave.”

EEOC Issues New National Origin Discrimination Guidelines

December 7, 2016 | by Jonathan I. Nirenberg

Last month, the United States Equal Employment Opportunity Commission (“EEOC”) issued a new Enforcement Guidance regarding national origin discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”).

While the Guidance is not legally binding, it explains the position of the Commissioner of the EEOC. Below is a brief overview of some of the most noteworthy topics it addresses:

Definition of National Origin

New Jersey Court Reinstates Employee’s Disability Discrimination Lawsuit

November 30, 2016 | by Jonathan I. Nirenberg

Earlier this month, New Jersey’s Appellate Division reversed a trial court’s decision that had dismissed Robert Benning’s disability discrimination lawsuit because the trial court improperly ignored evidence which supported his claim.

Mr. Benning is disabled. Specifically, he has cognitive impairment from an episode of cardiac arrest in 1984, which causes him difficulty with his short-term memory and processing new information.

In September 2006, Mr. Benning began working for the Middlesex Regional Education Services Commission (“Middlesex”). Although he initially served as a teacher’s aide, he quickly began to work as custodian. Between 2006 through 2009, he consistently received positive performance ratings.