New Jersey Employment Lawyer Blog

Whistleblower Law Applies Even if Employer Already Aware of Violation of Law

August 9, 2016 | by Jonathan I. Nirenberg

A ruling opinion from the United States District Court for the District of New Jersey recognizes that an employee can be protected by New Jersey’s whistleblower law, the Conscientious Employee Protection Act (“CEPA”), even if her employer knew about the issue before the employee objected about it.

Jacqueline Martelack worked for Toys ‘R’ Us, Inc. as a cashier. After she was promoted to become a Human Resources Department Supervisor, she told the employee who was training her that someone had been changing her time cards so she was not paid when she worked during her lunch break. Toys ‘R’ Us investigated her allegations and eventually confirmed that she and her coworkers were not being paid during scheduled breaks that they did not actually take. After the investigation, Toys ‘R’ Us paid the employees other than Ms. Martelack the wages they were owed for this unpaid work.

In the meantime, Toys ‘R’ Us told Ms. Martelack that she should stop reporting to her current store because it was going to transfer her to another location. However, it did not assign her to work for two months, and she eventually concluded that she had been fired. Ms. Martelack subsequently filed a lawsuit alleging in which she alleged, among other things, that Toys ‘R’ Us failed to pay her full hourly wage in violation of the Fair Labor Standards Act (“FLSA”), and fired her in violation of CEPA.

Treating Physician Can Testify About Employee’s Disability

August 1, 2016 | by Jonathan I. Nirenberg

Earlier this year, the New Jersey Supreme Court ruled that in an employment discrimination lawsuit the employee’s treating physician can offer medical opinions relating to the medical treatment without having to be designated an expert witness.

Patricia Delvecchio worked for the Township of Bridgewater as a police dispatcher. Ms. Delvecchio suffers from irritable bowel syndrome (“IBS”). She claims her IBS is a disability which Bridgewater failed to accommodate, in violation of the New Jersey Law Against Discrimination (“LAD”). Specifically, she asked the department not to require her to work the night shift because doing so exacerbated her IBS. The town refused, claiming doing so would impose an undue hardship since it would have to require other dispatchers to work the night shift more frequently. Bridgewater also denied Ms. Delvecchio’s requests to take an extended sick leave.

Eventually, the Township asked Ms. Delvecchio to resign. Ms. Delvecchio refused, and instead accepted a job as a records clerk, a position with a lower salary than her previous job as a police dispatcher. Ultimately, Bridgewater fired Ms. Delvecchio for “neglect of duty” and “chronic/excessive absenteeism” because she had exceeded her allotment of sick leave.

Rabner Baumgart Welcomes Joseph S. Fine

July 18, 2016 | by Jonathan I. Nirenberg

Rabner Baumgart Ben-Asher & Nirenberg, P.C. is pleased to announce that Joseph S. Fine has become Of Counsel to the firm.

Joe represents unions and employees in arbitrations, mediations, and negotiations, and in litigation at the National Labor Relations Board (“NLRB”) and before state and federal courts, and to counsel employees in negotiating employment and severance agreements.

He also serves as an arbitrator and mediator of labor and employment disputes and as a municipal hearing officer for employment matters.

Jonathan Nirenberg Quoted in New Jersey Law Journal

July 13, 2016 | by Jonathan I. Nirenberg

Earlier this week, I was quoted in the New Jersey Law Journal regarding the lawsuit Grethen Carlson recently filed against Roger Ailes, the CEO of Fox News Network. Ms. Carlson alleges that Mr. Ailes sexually harassed her and eventually fired her as a Fox News anchor because she resisted his sexual advances.

Ms. Carlson filed her lawsuit in Bergen County, New Jersey. However, Mr. Ailes had the case removed to Federal Court. He is currently seeking to force the case into a confidential arbitration rather than a public court. Mr. Ailes is relying on the fact that Ms. Carlson’s employment contract with Fox News includes an arbitration clause.

According to the Law Journal article, Fox News Suit Could Hinge on Disparate Arbitration Stances in NY, NJ, Ms. Carlson is claiming the arbitration clause does not apply to her case because Mr. Ailes is not a party to her employment agreement with Fox News and is not even mentioned in it. In contrast, Fox is arguing that a lawsuit against Mr. Ailes in his capacity as Fox’s CEO is in effect a lawsuit against the network, and that the arbitration clause is broad enough to encompass this dispute because it arises out of Ms. Carlson’s employment relationship with it.

Employer’s Attempt to Mislead Investigator Relevant to Sexual Harassment Claim

July 6, 2016 | by Jonathan I. Nirenberg

The New Jersey Supreme recently ruled that evidence showing an employer told a key witness to provide false information during a company’s internal sexual harassment investigation can be relevant at the trial.

Tonique Griffin, Virginia Best and Rosalyn Walker, three female employees of the City of East Orange, claim their supervisor, Obed Prinvil, created a sexually hostile work environment for them. Specifically, Ms. Griffin and Ms. Best claim Mr. Prinvil kissed them, and Ms. Walker alleges he repeatedly told her he was attracted to her, loved her and wanted to be “more than just friends,” and once tried to kiss her.

After the three women reported Mr. Prinvil’s harassment, the City hired an employment lawyer, Dina Mastellone, to investigate. After Ms. Mastellone had finished interviewing witnesses, the City suggested she should interview one of the Mayor’s aides, Corletta Hicks. Ms. Hicks then made negative statements to Ms. Mastellone about all three women, including that Ms. Griffin and Ms. Best “have always been a mess,” that Ms. Griffin “preys on older married men,” that she suspected Ms. Griffin had a “personal relationship” with Mr. Prinvil, and that Ms. Griffin had serious financial problems. In contrast, Ms. Hicks described Mr. Prinvil as a “phenomenal director” who always acted professionally in the workplace.

Employers Can’t Fire Employees Based on Stereotypes About Divorce

July 1, 2016 | by Jonathan I. Nirenberg

Last week, the New Jersey Supreme Court concluded that the New Jersey Law Against Discrimination (“LAD”), which includes a prohibition against marital status discrimination, not only makes it unlawful for employers to discriminate against employee because they are married or single but also because they are separated, engaged, or seeking a divorce.

Robert Smith worked for the Millville Rescue Squad for 17 years, most recently as its Director of Operations. Mr. Smith’s wife, Mary Smith, also worked for the Squad. In 2005, Mr. Smith had an affair with one of his subordinates. When Mrs. Smith learned about her husband’s affair, she reported it to his immediate supervisor, John Redden.

In early 2006, Mr. Smith moved out of his home and told Mr. Redden that his marriage had collapsed. On February 16, 2006, Mr. Smith told Mr. Redden he did not think there was any chance he would reconcile with his wife. In response, Mr. Redden indicated that he expected it would be an “ugly divorce.” Mr. Redden also told Mr. Smith he had previously discussed the issue with the Squad’s Board of Directors, but would not have done so if he believed there was any chance Mr. Smith would reconcile with his wife. Mr. Redden fired Mr. Smith the next day.

Parties Cannot Shorten Deadline to File New Jersey Law Against Discrimination Claims

June 17, 2016 | by Jonathan I. Nirenberg

Earlier this week, the New Jersey Supreme Court ruled that private parties cannot agree to shorten the two year statute of limitations that applies to the New Jersey Law Against Discrimination (“LAD”).

The case was filed by Sergio Rodriguez. When Mr. Rodriguez applied for a job as a Helper for Raymours Furniture Company (better known as Raymour & Flanigan), he signed a job application. The application contained a provision requiring him to bring any legal claims relating to his employment within 6 months after the action that becomes the subject of the lawsuit, and waiving any statute of limitations to the contrary.

Ramours hired Mr. Rodriguez. In April 2010, he injured his knee at work. He filed a workers’ compensation claim and received benefits. After undergoing knee surgery and physical therapy, he was cleared to return to work starting on September 14, 2010. Mr. Rodriguez initially was on light duty for two weeks. Raymours fired him on October 1, 2010, two days after he returned to full duty work.

Backlash Against Non-Disparagement Clauses

June 15, 2016 | by Jonathan I. Nirenberg

It has become extremely common, if not standard practice, for employers to include non-disparagement clauses in settlement agreements and severance packages they offer to their former employees. These provisions prohibit employees from saying anything negative about their former employers. They are extremely broad, since they prohibit true but negative statements and opinions. In addition, they typically prohibit employees from saying anything negative not just about the company itself, but also about its current and previous owners, directors, officers, employees, subsidiaries and parent companies.

The unfortunate reality is that many employees who sign severance agreements either have not read the entire agreement or do not understand or appreciate many of its provisions. Even individuals who realize they are being asked not to say anything negative about their former employers generally have no choice but to agree if they want the severance pay and other benefits that have been offered to them. Of course, for someone who has recently lost his or her job it can be difficult to reject a severance offer over something like a non-disparagement clause. As a result, employees regularly agree not to disparage their former employers.

A recent article in the New York Time, Laid-Off Americans, Required to Zip Lips on Way Out, Grow Bolder, indicates that there is a growing backlash against non-disparagement clauses. For example, it indicates that several prominent Democrat and Republican members of Congress have questioned the widespread use and misuse of non-disparagement agreements.

Supreme Court Clarifies Deadline to File Constructive Discharge Claims

June 8, 2016 | by Jonathan I. Nirenberg

The United States Supreme Court recently ruled that in constructive discharge cases the 45-day deadline for federal employees to contact the United States Equal Employment Opportunity Commission (“EEOC”) begins on the day the employee resigned. A constructive discharge occurs when an employee resigns after the “working conditions become so intolerable that a reasonable person in the employee’s position would have felt compelled to resign.”

Title VII is a federal law that prohibits employers from discriminating based on race, color, religion, sex and national origin. It also prohibits employers from retaliating against employees because they complained about one of those forms of discrimination.

One of the requirements for a federal employee to bring a claim under Title VII is that he has to contact an EEOC counselor within 45 days after the “matter alleged to be discriminatory.” Notably, for employees who work for private companies or the state or local government in New York or New Jersey there is a longer 300 day deadline to file a Title VII claims with the EEOC. Likewise, there is a 2 year statute of limitations to file claims under the New Jersey Law Against Discrimination and a three year statute of limitation under the New York State Human Rights Law.

Employee Can Be Fired For False Affidavit Supporting Discrimination Claim

May 5, 2016 | by Jonathan I. Nirenberg

A recent decision from New Jersey’s Appellate Division recognizes that the anti-retaliation provisions of the Americans with Disabilities Act (“ADA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”) do not protect an employee who submits a false affidavit in support of a coworkers’ discrimination claim.

Ariel Gonzalez, worked as a Detective for the Waterfront Commission of New York Harbor. In June 2012, he signed an affidavit in support of the Commission’s former assistant general counsel, Kimberly Zick, in connection with Ms. Zick’s discrimination lawsuit against the Commission under the ADA and the Rehabilitation Act of 1973. Ms. Zick’s case was dismissed in October 2012 because her allegations did not support her claims.

Shortly after Ms. Zick’s case was dismissed, the Commission began to investigate Det. Gonzalez regarding statements in his affidavit. When the Commission interviewed Det. Gonzalez he again swore under oath that the statements in his affidavit were truthful. The Commission then suspended Det. Gonzalez and brought disciplinary charges against him seeking to terminate his employment.