New Jersey Employment Lawyer Blog

First Amendment Protects Speech Perceived to be Protected Political Activity

April 28, 2016 | by Jonathan I. Nirenberg

Earlier this week, the United States Supreme Court ruled that the First Amendment prohibits the government from demoting an employee because it incorrectly believed the employee had engaged in Constitutionally-protected political speech.

The case involves Jeffrey Heffernan, a police officer who worked for the City of Paterson, New Jersey. In 2005, Lawrence Spagnola was running for mayor against incumbent Mayor Jose Torres. Mayor Torres had appointed the Patterson Police Chief, James Wittig, tore his position.

At the request of his mother, Mr. Heffernan picked up a large sign supporting Mr. Spagnola for mayor that his mother wanted to put on her front lawn. Other members of the Paterson Police Department saw Mr. Heffernan holding the sign while he was talking to members of Mr. Spagnola’s campaign staff.

Independent Sales Representatives May Be Entitled to Quadruple Damages

April 27, 2016 | by Jonathan I. Nirenberg

A less-known New Jersey statute provides protection to independent commissioned salespeople after their contracts terminate. That law, the New Jersey Sales Representatives’ Rights Act, entitles independent contractors who work as sales representatives to be paid all commissions and any other compensation they earned within 30 days after their contracts terminated or 30 days after their commissions were due, whichever is later. This requirement applies irrespective of the reason why the contract terminated, including if the sales representative resigned, was terminated without cause, or was terminated with cause.

The statute, which originally was passed in 1990, defines a “sales representative” to be “an independent sales company or other person” who is compensated at least in part by commissions. It makes it clear its protection applies only to independent contractors, and does not apply to employees.

The statute further indicates that sales representatives also are entitled to receive commissions on goods that were ordered on or before the last day of the salesperson’s contract, even if the principal (meaning the business or individual who they worked for) did not accept, receive or pay for the goods until after the salesperson’s contract terminated. The principal must pay the salesperson for any such post-termination commissions within 30 days after the payment would have been due under the contract if it had remained in effect.

Are Stock “Clawback” Provisions Unenforceable Penalties?

April 7, 2016 | by Jonathan I. Nirenberg

Many executives and other high-level employees receive stock options, restricted stock units (RSUs) and other forms of deferred compensation as part of their compensation packages. Often, the employers who issue these forms of equity to their employees include non-compete agreements and other restrictive covenants in the stock agreements. These provisions frequently include “clawback” provisions that require the employee to return the value of the equity they received if they violate the terms of one of the restrictive covenants.

However, these provisions may not be enforceable under either New Jersey or New York law. In both states, the law is clear that penalty provisions in contracts are not enforceable. But a contract can contain a liquidated damages provision, meaning an agreement in advance about the amount of damages when the parties expect it will be difficult to prove the actual damages caused by a breach.

As the New Jersey Supreme Court explained in a 1994 case, Wasserman’s Inc. v. Township of Middletown, a liquidated damages provision must be a “reasonable forecast of the provable injury resulting from breach” of contract at the time the contract was written. In other words, the agreed-upon amount of damages has to be a fair estimate of what the actual damages are likely to be. If it is not, then “the clause will be unenforceable as a penalty and the non-breaching party will be limited to conventional damage measures,” meaning it will have to prove its actual damages. While Wasserman’s itself does not involve a clawback provision, in an 2011 unpublished opinion, Schiavi v. AT&T Corp., the New Jersey Appellate Division recognized that the same principles apply to stock clawback clauses.

Elizabeth is Tenth New Jersey Town to Require Paid Family Leave

March 29, 2016 | by Jonathan I. Nirenberg

Earlier this month, the City of Elizabeth became the tenth New Jersey municipality to require employers to provide a minimum amount of paid sick leave time off from work.

Elizabeth, which is in Union County, joins Newark, Montclair, Bloomfield, East Orange and Irvington in Essex County, Jersey City in Hudson County, Passaic and Paterson in Passaic County and Trenton in Mercer County in entitling employees to paid sick leave time off from work.

The Elizabeth ordinance is similar to each of the other 9 ordinances. With some exceptions, they generally require employers with at least 10 employees to provide at least 80 hours of paid sick time per year. In contrast, employers with fewer than 10 employees are only required to provide employees 24 hours of paid sick leave each year.

Court Rejects Testimony of Undisclosed Witnesses in Religious Accommodation Lawsuit

March 16, 2016 | by Jonathan I. Nirenberg

A recent ruling by the United States District Court for the District of New Jersey underscores the importance of disclosing potential witnesses to your opposing party during the discovery process of a lawsuit.

The case was filed by Matthew Webster, an individual whom Dollar General hired to be its store manager in a new location in Sicklerville, New Jersey. Mr. Webster is a Seventh Day Adventist. He asked Dollar General to allow him not to work on Saturday because his religious beliefs prevent him from doing so. The employer denied his request claiming it would have imposed an undue burden on its ability to operate the Sicklerville store. Among other things, Dollar General contends that doing so would leave the store without sufficient and capable leadership on the “busiest sales day” of the week and would require other key personnel to work longer and more frequent shifts.

Ultimately, Dollar General fired Mr. Webster because he would not work on Saturdays. Mr. Webster sued, alleging Dollar General and two of its employees, Bob Miller and Vince Triboletti, denied him a reasonable accommodation for his religious beliefs and otherwise discriminated against him because of his religion in violation of the New Jersey Law Against Discrimination (“LAD”).

Rabner Baumgart Ben-Asher & Nirenberg, P.C.

February 29, 2016 | by Jonathan I. Nirenberg

On behalf of all of my partners, I am pleased to announce that our law firm has changed its name from Rabner Baumgart Ben-Asher & Nirenberg, P.C. to:

Rabner Baumgart Ben-Asher & Nirenberg, P.C.

I am honored that the firm has chosen to include me in its name. We will continue to concentrate in the representation of employees, executives and entrepreneurs in employment law matters.

Hispanic is a “Race” Under Federal Anti-Discrimination Laws

February 23, 2016 | by Jonathan I. Nirenberg

Earlier this month, the United States Court of Appeals for the Second Circuit recently recognized that “Hispanic” is a race for purposes of two federal anti-discrimination laws.

The case involved Police Lieutenant Christopher Barrella, a white Italian-American. Lt. Barrella works for the Village of Freeport, New York. When there was a vacancy for chief of police, Lt. Barrella and 5 other lieutenants took the relevant civil service test. Although Lt. Barrella scored highest on the test, Mayor Andrew Hardwick chose to promote another candidate, Lieutenant Miguel Bermudez.

Lt. Barrella sued Freeport and Mayor Hardwick, claiming they discriminated against him because of his race (non-Hispanic) in violation of the New York State Human Rights Law (“NYSHRL”) and two federal laws, Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. He claims Mayor Hardwick, who is African American, promoted Lt. Bermudez, who was born in Cuba, because he is Hispanic.

Employers Need Sufficient Basis to Require Fitness for Duty Exam

February 8, 2016 | by Jonathan I. Nirenberg

A recent ruling by New Jersey’s Appellate Division demonstrates that an employer can commit disability discrimination in violation of the Americans with Disabilities Act (“ADA”) if it requires an employee to attend a psychiatric fitness for duty exam without a sufficient basis to do so.

Paul Williams worked for the Township of Lakewood, New Jersey as a truck driver for the Department of Public Works (“DPW”). In March 2013, Lakewood received an anonymous letter which claimed Mr. Williams’s coworkers “dread” working with him and “everyone knows he has some sort of mental issues” that lead to daily “tirades and outbursts.” The letter asked Lakewood to get Mr. Williams help, and to take steps to ensure the safety of his coworkers.

Lakewood waited more than eight months before it did anything in response to the letter. In December 2013, it ordered Mr. Williams to attend a psychological fitness for duty examination, and warned him he would be subject to discipline if he failed to attend. Mr. Williams refused to attend the exam, claiming it violated his rights under the ADA. True to its warning, Lakewood fired Mr. Williams.

Employee Entitled to Evidence of Employer’s Past Discrimination Based on Different Protected Categories

February 1, 2016 | by Jonathan I. Nirenberg

Recently, the New Jersey Appellate Division ruled that an employee who brought a discrimination lawsuit is entitled to obtain evidence about the facts of another employment discrimination lawsuit against one of the individuals he claims discriminated against him. The Court reached this conclusion even though the alleged discrimination in the previous case was based on completely different legally-protected categories.

Harold Hansen brought a discrimination lawsuit against his former employer, Rite Aid Corporation, and its Loss Prevention Manager, Craig Mauriello, among others. Rite Aid fired Mr. Hansen in May 2008. Although the company did not give Mr. Hansen any explanation when it fired him, it subsequently claimed it fired him because he violated company policy by failing to report to management that several other store employees had reported to him that they believed the daughter of another employee was shoplifting from the store.

In his lawsuit, Mr. Hansen claims the decision to fire him was based on his age, gender and sexual orientation in violation of the New Jersey Law Against Discrimination (“LAD”).

Rabner Allcorn Settles Employment Case for $2.25 Million

January 19, 2016 | by Jonathan I. Nirenberg

I am pleased to report that I recently settled an employment law case against the Borough of Bogota, New Jersey for $2.25 million on behalf of my client, Police Officer Regina Tasca. I handled the case with my co-counsel, Catherine M. Elston, Esq.

Our client was the first and only female police officer in the history of the Bogota Police Department. She began working for Bogota in January 2001. Until April 2011 she had a virtually unblemished record.

In May 2011, Bogota suspended her, claiming she was unfit for duty based on an unspecified psychological disability. Bogota subsequently brought disciplinary charges against her, claiming she was not fit for duty and had engaged in misconduct during two incidents in April 2011. Following a 12 day internal disciplinary hearing, the Borough Council voted to terminate her employment, effective October 18, 2012.