New Jersey Employment Lawyer Blog

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.

Third Circuit Reinstates Police Officers’ Whistleblower Case

November 28, 2016 | by Jonathan I. Nirenberg

A recent case from the Third Circuit Court of Appeals reinforces the fact that an employee who objects to something he reasonably believes violates the law does not have to be correct to be protected by New Jersey’s whistleblower law, the Conscientious Employee Protection Act (“CEPA”).

Police Officers Anthony Galiazzi, Charles Holland and John Williamson work for the Camden Police Department. They objected to the department’s “directed patrols” policy because they believed it violated New Jersey’s anti-quota law. Under Camden’s policy, police officers were required to speak to at least 18 (and in some instances at least 27) residents per shift for up to 15-20 minutes each.

Officers Galiazzi, Holland and Williamson objected to the directed patrols policy because they believed it violated New Jersey’s anti-quota law, which prevents police departments from requiring police officers to issue a minimum number of arrests or citations. Among other things, they claim Camden retaliated against them in violation of CEPA by transferring them from the elite unit to regular patrol duty, reducing their salaries, taking away vacation, placing limits on their sick leave and having the Internal Affairs unit investigate them.

Decision Based on Family Relationship is Not Ancestry Discrimination

November 21, 2016 | by Jonathan I. Nirenberg

Earlier this month, New Jersey’s Appellate Division recognized that New Jersey Law Against Discrimination (“LAD”)’s prohibition against ancestry discrimination does not prevent employers from discriminating against an individual because he is related to another employee.

In 2011, John Walsifer applied for one of two vacant positions as a police officer with the Borough of Belmar. Of the job applicants, Mr. Walsifer had the second highest score on the Civil Service test. Erik Lieb, a military veteran, was at the top of the Civil Service list. Michael Yee, who already worked for Belmar as a special police officer, was third on the list.

Belmar chose to hire Mr. Lieb and Mr. Yee and did not offer a job to Mr. Walsifer. It was required to give a preference to Mr. Lieb in the hiring process because of his veteran status. The Borough claimed it offered the position to Mr. Yee because of his experience as a special police officer, the related police training he had received, and the fact the he already was authorized to carry a service weapon.

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.