New Jersey Employment Lawyer Blog

Employer Can Be Liable Based on Coworker’s Retaliatory Motive

November 7, 2016 | by Jonathan I. Nirenberg

A recent ruling by the Second Circuit Court of Appeals in a sexual harassment retaliation case holds that an employer can be liable if it negligently fires an employee due to the discriminatory or retaliatory animus of an employee who was not a supervisor.

Andrea Vasquez worked for Empress Ambulance Service, Inc. as an emergency medical technician. One of her coworkers, Tyrell Gray, repeatedly asked her out on dates, tried to flirt with her and put his arm around hers and touched her shoulders. Mr. Gray’s conduct was unwelcome and made Ms. Vazquez uncomfortable.

For instance, on January 8, 2014 Mr. Gray asked Ms. Vasquez to go on a date with him. Ms. Vazquez made it clear she was not interested. Later that evening Mr. Gray texted Ms. Vazquez a picture of his penis. Extremely upset, embarrassed and in tears, at the end of her shift Ms. Vazquez complained to her supervisor and began typing a sexual harassment complaint.

Employer Cannot Offset Unpaid Work with Voluntary Pay During Meals

October 31, 2016 | by Jonathan I. Nirenberg

A recent ruling from the United Stated Third Circuit Court of Appeals in a wage and hour lawsuit holds that an employer cannot use the fact that it voluntarily paid its employees during their lunch to offset periods when employees worked but were not paid. The Third Circuit is the federal appellate court that handles cases from several districts, including the District of New Jersey.

The case was brought by Bobbi-Jo Smiley, Amber Blow, and Kelsey Turner, three former employees of E.I. Dupont De Nemours & Co. and Adecco USA, Inc. (collectively, “DuPont”), as a potential class and collective action. They claimed DuPont failed to pay them overtime for a total of approximately 30 to 60 minutes per day for time they spent (1) “donning and doffing,” meaning putting on and taking off their uniforms and protective gear, and (2) “shift relief,” meaning updating the employees who would be relieving them on the next shift. Since the employees routinely worked more than 40 hours per week, they claimed they were entitled to time-and-a-half for these additional pre-shift and post-shift overtime hours.

The workers sued under the Fair Labor Standards Act (“FLSA”) and a similar state wage and hour law. After 160 workers joined the lawsuit, DuPont filed a motion for summary judgment seeking to have the case dismissed. The company argued that because it had voluntarily paid the workers during their lunch and other meal breaks – something it was not legally required – those payments should offset any additional overtime pay which the employees might be entitled to receive. The trial court agreed and dismissed the case since the paid meal breaks were longer than the unpaid donning and doffing and shift relief time. The employees appealed.

Law Would Make it Illegal to Seek Job Candidate’s Salary History

October 18, 2016 | by Jonathan I. Nirenberg

A potential amendment to the New Jersey Law Against Discrimination (“LAD”) would make it illegal for employers to ask prospective employees about their wage and salary history before hiring them. The LAD is an anti-discrimination law that protects New Jersey employees from discrimination, harassment and related retaliation.

Introduced last month by Senators Nia H. Gill (Dem. Essex/Passaic) and Loretta Weinberg (Dem. Bergen), the bill would make it unlawful for an employer to reject or screen a job applicant based on his or her past salary or wages. More specifically, it would prohibit employers from having a minimum or maximum requirement for job applicants in terms of past salary, wages or benefits. It also would prohibit employers from relying on a job applicant’s previous compensation at any time during the hiring process, up to and including finalizing an employment contract or job offer.

In addition, the proposed amendment to the LAD would make it unlawful for an employer to inquire about a job candidate’s compensation and benefits history, either in writing or otherwise unless the candidate voluntarily provided the employer a written authorization to obtain his or her compensation or benefits history.

Court Prohibits Employees from Violating Non-Compete Agreement

October 5, 2016 | by Jonathan I. Nirenberg

In a recent ruling in a non-compete agreement case, United Stated District Judge William J. Martini declined to lift an injunction prohibiting two former employees of ADP from soliciting the company’s clients on behalf of a competitor. Notably, however, the judge did not prohibit the employees from working for the competitor.

The two employees, John Halpin and Jordan Lynch, each participated in ADP’s stock award plan for five consecutive years. To participate, they both had to click on an electronic box to acknowledge that they had read related documents. Those documents included restrictive covenants which state that the employees cannot: (1) solicit certain clients and prospective clients of ADP for one year after they stopped working for the company; (2) disclose any of ADP’s confidential information; or (3) use ADP’s confidential information regarding the identity of the company’s current, past or prospective clients. In addition, Mr. Lynch signed a separate “Sales Representative Agreement” that included similar restrictions.

After Mr. Halpin and Mr. Lynch left ADP, they each began to work for one of its competitors, The Ultimate Software Group, Inc. (“USG”). ADP sued Mr. Halpin and Mr. Lynch, asserting that they had violated their restrictive covenants. It also sought a preliminary injunction to prohibit them from working for USG and from soliciting ADP’s clients. The two former employees made numerous arguments in opposition to the injunction, including that they never actually read or agreed to the restrictive covenants.

Employer Can’t Fire Employee for Mistake Caused by its Failure to Accommodate his Disability

September 29, 2016 | by Jonathan I. Nirenberg

A New Jersey court recently ruled that a jury must determine whether an employer committed disability discrimination in violation of the New Jersey Law Against Discrimination (“LAD”) by firing an employee for making a mistake on a day on which he had asked to be on a medical leave.

Matthew Cook worked for Gregory Press, Inc. as a printing machine operator. In 2011, he began to experience neck pain, numbness and tingling in face, and tingling in his hands. He saw a doctor who recommended an MRI.

In the meantime, Mr. Cook’s home was flooded and severely damaged by Hurricane Irene. He took almost a week off from work to repair his home.

NJ Supreme Court Makes it Harder to Reduce Emotional Distress Damages

September 20, 2016 | by Jonathan I. Nirenberg

Yesterday, in an employment discrimination case, the New Jersey Supreme Court dramatically limited the right of courts to reduce the amount of a jury’s emotional distress damages award, ruling that courts can only do so in unusual cases.

The case was filed by two brothers, Ramon and Jeffrey Cuevas. The Cuevas brothers are Hispanic. Their employer, Wentworth Property Management Corporation, subjected them to derogatory and humiliating remarks relating to their race. It fired the brothers shortly after Jeffrey complained about the harassment.

After a trial, the jury awarded Ramon over $1 million in lost wages, $800,000 in emotional distress damages and $52,500 in punitive damages. It also awarded Jeffrey $150,000 in lost wages, $600,000 in emotional distress damages and $32,500 in punitive damages. Wentworth asked the trial court to remit (reduce) the emotional distress damages awards, arguing they were excessive.

Objection to Customer’s Sexual Harassment Protected from Retaliation

September 15, 2016 | by Jonathan I. Nirenberg

The New Jersey Law Against Discrimination (“LAD”) prohibits employers from retaliating against employees who object to harassment in the workplace. A recent case recognizes that the LAD also protects employees who object to sexual harassment committed by a customer.

Nicole Prager was a receptionist for Joyce Honda. One day, a customer tugged at the arm of her shirt and exposed her bra at work.

After the incident occurred, a service manager asked Ms. Prager if she wanted to file criminal charges against the customer. When Ms. Prager indicated she was not sure, the manager told her she had to decide within 15 minutes. Ms. Prager believed the manager was trying to discourage her from pressing charges because the harasser was a very good customer who had purchased approximately 20 cars during the previous year.

Federal Labor Laws Do Not Preempt Union Members Whistleblower Claim

September 1, 2016 | by Jonathan I. Nirenberg

In an important employment law decision, last month the New Jersey Supreme Court ruled that an employee can pursue a retaliation claim under New Jersey’s Conscientious Employee Protection Act (“CEPA”) even though his alleged whistleblowing activity has some relationship to his rights under the collective bargaining agreement (“CBA”) between his employer and his union.

Salvatore Puglia worked for Elk Pipeline, Inc. He was a union member who was subject to a CBA. Mr. Puglia and one of his coworkers complained to their supervisor when the company cut their salary in half. They eventually asserted that Elk was violating New Jersey’s Prevailing Wage Act, a wage and hour law that entitles certain employees assigned to public works jobs to be paid a specific legally-established minimum hourly rate. Mr. Puglia also complained to the company’s president about this violation of law.

Eventually, Elk resumed paying Mr. Puglia and his coworkers their full salary. However, the company failed to pay Mr. Puglia all of the back pay he was owed. According to Mr. Puglia, when he objected about this the company’s president warned him to “either be quiet and keep [his] job or be laid off.”

NJ Court Refuses to Enforce Employment Arbitration Agreement

August 22, 2016 | by Jonathan I. Nirenberg

As I have said before, it is a widely view that individuals are much better off having their employment law disputes resolved in court rather than in arbitration. Fortunately, a recent decision by the New Jersey Appellate Division helps make it more difficult for employers to force employment law cases into arbitration.

Eleison Pharmaceuticals, LLC hired Forrest Anthony as its Vice President and Chief Medical Officer. They entered into a three year employment contract, pursuant to which Mr. Anthony would receive a $250,000 annual base salary plus bonuses. The contract requires the parties to use a “phased dispute resolution process” for any disputes arising out of the agreement. The final step of the dispute resolution process is binding arbitration.

Mr. Anthony eventually filed a lawsuit against Eleison in which he alleged that the company owes him over $263,000 in unpaid salary. Among his claims, he asserted that the company violated the New Jersey Wage Payment Act because it (1) did not pay him at least once per month; (2) did not pay him at least minimum wage; (3) did not pay him time-and-a-half when he worked more than 40 hours per week; and (4) did not pay him all wages he was owed when his employment relationship terminated. In addition, he alleged the company breached his employment contract by failing to pay his full salary.

Employee Hired When 60 Years Old Can Proceed with Age Discrimination Claim

August 17, 2016 | by Jonathan I. Nirenberg

Last month, New Jersey’s Appellate Division reversed a trial court’s ruling that had dismissed an employee’s age and disability discrimination case.

Spencer Robinson worked for Armadillo Automation, Inc., also known as Onyx Valve Co., in its assembly department. When Onyx hired Mr. Robinson, he was 60 years old. According to Mr. Robinson, when he was hired he made it clear he had a lower back condition and needed a stool so he could sit during the workday. Onyx provided him a stool.

Approximately six years later, Mr. Robinson experienced neck pain while he was working. He claims he reported his injury to the company’s vice president, who refused to send him the doctor and indicated he did not believe it was a workplace injury. Mr. Robinson further alleges the vice president told him he would not take him to the hospital unless he was “passed out on the floor or profusely bleeding.”