New Jersey Employment Lawyer Blog

No Expert Report Required for Doctor to Testify About Employee’s Disability

August 26, 2014 | by Jonathan I. Nirenberg

New Jersey’s Appellate Division recently ruled that a treating physician can testify about an employee’s disability without submitting an expert report. Normally, a witness who is going to provide an expert opinion is required to submit a formal report explaining his or her opinions prior to the trial.

Patricia Del Vecchio worked as police dispatcher for the Township of Bridgewater for approximately a decade. Over the last five years she held that position, her gastroenterologist, Gary Ciambotti, M.D., wrote fourteen doctors’ notes indicating that due to a variety of gastroenterological conditions, including irritable bowel syndrome, Ms. Del Vecchia should not work the night shift unless it was an emergency.

For three years, Bridgewater did not require Ms. Del Vecchio to work the night shift, but eventually it asked her to transfer to the midnight shift. She indicated she did not want to work the midnight shift because of her medical condition. In response, Bridgewater told her that if she did not accept a transfer to another job it would fire her.

EEOC Issues New Pregnancy Discrimination Enforcement Guidelines

August 1, 2014 | by Jonathan I. Nirenberg

A few weeks ago, the United States Equal Opportunity Commission (EEOC) issued new enforcement guidelines regarding the federal Pregnancy Discrimination Act (PDA) and related claims under the Americans with Disabilities Act (ADA).

The PDA prohibits most employers from discriminating against employees based on pregnancy, childbirth or related medical conditions. It also requires them to treat women based on their ability or inability to work, rather than based on pregnancy, childbirth, or related medical conditions. The ADA prohibits employers from discriminating against employees because they have a disability, including a pregnancy-related disability. It also requires employers to provide reasonable accommodations to permit disabled employees to perform the essential functions of their jobs.

The EEOC’s guidelines make it clear employers cannot discriminate against employees based on a current or past pregnancy. It notes employees are more likely to prove discrimination claims based on past pregnancies when the employer takes an adverse action (such as termination or demotion) relatively quickly after the employee gave birth. For instance, there can be a strong inference of pregnancy discrimination when an employer takes a negative action while the employee is still on a maternity leave, or right after she returns from one.

Discrimination Because of Pending Divorce Violates New Jersey Law

July 24, 2014 | by Jonathan I. Nirenberg

A recent Appellate Division opinion recognizes that firing an employee because he or she is in the process of getting divorced violates the New Jersey Law Against Discrimination (LAD) because it constitutes marital status discrimination.

Robert Smith worked for the Millville Rescue Squad for 17 years as an emergency medical technician (EMT) for 27 years. Mr. Smith’s wife, who also worked for Millville, was one of his subordinates. The couple separated after Mr. Smith’s wife learned he had been having an affair with another subordinate.

Mr. Smith told his supervisor, John Redden, that he had his wife had separated, and indicated he did not think there was any chance he would reconcile with her. Millville fired Mr. Smith approximately six weeks later.

FLSA Prohibits Retaliation Against Employee Who Complained About Violation of State Wage and Hour Law

July 17, 2014 | by Jonathan I. Nirenberg

Last month, a judge in the United States District Court for the District of New Jersey ruled that an employee who files a wage and hour claim with the New Jersey Department of Labor (“NJDOL”) can be protected from retaliation under the Fair Labor Standards Act (“FLSA”) even if her original claim did not assert that her employer violated the FLSA.

Veronica Reilly worked for Quick Care Medical, P.C., as an office manager. She filed a claim seeking to recover unpaid vacation time and overtime pay with the NJDOL. Specifically, she claimed the company failed to pay her $673.20 to which she was entitled when she used a week of her accrued vacation time. She also claimed she was improperly denied $168.40 in overtime pay. She brought her claims under two state laws, the New Jersey Wage Collection Statute and the Wage Payment Law Statute. Ms. Reilly won both of her claims, and the NJDOL ordered Quick Care to pay the full $841.60 she sought in vacation and overtime pay.

According to Ms. Reilly, when she returned to work on the day of her hearing at the NJDOL, her boss, Dr. Neerja Misra, reprimanded her for failing to tell the company she was going to be late for work that day. Dr. Misra apparently told Ms. Reilly not to come to work for the next three days, and then fired Ms. Reilly when she returned to work on the fourth day after her hearing.

Court Takes Surprising Turns in Reasonable Accommodation/FMLA Case

July 10, 2014 | by Jonathan I. Nirenberg

A recent decision by the New Jersey District Court addressed important issues regarding retaliation following an employee’s request for a reasonable accommodation and time off under the Family and Medical Leave Act (“FMLA”).

In Boles v. Wal-Mart Stores, Inc., plaintiff Barry Boles worked for Wal-Mart Stores, Inc. for approximately ten years. As a result of a medical condition, his physician signed him out of work for approximately five months, which included several extensions of leave. Wal-Mart retroactively approved his FMLA leave (12 weeks), and designated his remaining time off as personal leave. The plaintiff claimed he did not receive documentation regarding how his leave was allocated or indicating he could be fired if he failed to return to work following his FMLA leave. Within three days after Boles returned to work, Wal-Mart terminated him for failure to return to work following his approved leave.

The plaintiff had received a performance warning approximately two weeks prior to taking leave. Shortly thereafter, Wal-Mart claimed that on one occasion prior to his leave he failed to complete certain overnight job responsibilities and to notify his supervisors that he was leaving early.

New Jersey Court Upholds Contract Shortening Deadline to File Discrimination Lawsuit

June 30, 2014 | by Jonathan I. Nirenberg

New Jersey’s Appellate Division recently ruled that employers can enforce agreements that shorten the statute of limitations for employees to bring claims against them.

Sergio Rodriguez applied for a job as a helper at Raymour & Flanigan in August 2007. Mr. Rodriguez was born in Argentina and speaks limited English. He filled out a job application, which was in English, with help from a friend. The application included a provision that if Mr. Rodriguez was hired he would have only six months to file a lawsuit after any employment-related claim arose. It also expressly waived any statute of limitations to the contrary, and his right to a jury trial. Mr. Rodriguez signed and submitted the employment application. Raymour & Flanigan hired him the following month.

In 2010 Mr. Rodriguez injured his knee at work. He took a medical leave, had surgery and returned to work on light-duty in September 2010. By September 28, 2010 he was working without restrictions.

Employee’s Objection Must Relate to Violation of Measurable Standard to be Protected by CEPA

June 25, 2014 | by Jonathan I. Nirenberg

On June 16, 2014, the New Jersey Supreme Court ruled that by the Conscientious Employee Protection Act (“CEPA”) did not protect an employee who was fired after he objected because the nursing home for which he worked was not taking sufficient steps to prevent the spread of infectious disease. In the process, it concluded that to be protected by CEPA an objection has to relate to a measurable standard or requirement.

CEPA is New Jersey’s broad “whistleblower” law. Among other things, it prohibits employers from retaliating against employees because they object about activities they reasonably believe constitute “improper quality of patient care,” including any professional code of ethics, or are “incompatible with a clear mandate of public policy concerning the public health.”

James Hitesman, a registered nurse, worked for Bridgeway, Inc., at nursing home in Bridgewater, New Jersey. Bridgeway fired Mr. Hitesman after he complained to the company’s management about high rates of infectious diseases at the nursing home, and raised similar concerns to the Somerset County Department of Health, New Jersey Department of Health and Senior Service, and a television reporter. He sued, claiming Bridgeway fired him in violation of CEPA.

New Jersey Supreme Court Limits Private Lawsuits Under Civil Rights Act

June 10, 2014 | by Jonathan I. Nirenberg

Recently, the New Jersey Supreme Court ruled that private claims under the New Jersey Civil Rights Act (NJCRA) are limited to claims against individuals who were acting “under color” of state law. In other words, you can bring a private lawsuit under the NJCRA, but only against someone who was acting in his or her capacity as an employee or agent of the state or local government.

The case was brought by Maryann Cottrell, a resident of Glassboro, New Jersey. Ms. Cottrell apparently made negative comments about Zagami LLC at its public liquor license renewal hearing. Zagami is a company that owns a restaurant and bar in Glassboro. The company subsequently sued Cottrell, claiming her statements at the hearing were defamatory.

Zagami’s lawsuit eventually was dismissed by the Appellate Division. It found that since the liquor license renewal hearing was a “quasi-judicial” proceeding, Ms. Cottrell’s statements at it were protected by absolute immunity, meaning she could not be sued for anything she said at the hearing.

Court Permits Employee to Proceed With Reverse Discrimination Lawsuit

May 21, 2014 | by Jonathan I. Nirenberg

While minorities are most frequently the victims of discrimination, it is well-established that reverse discrimination also violates the New Jersey Law Against Discrimination (LAD). For example, it is unlawful for a company to discriminate against an employee because he is male, white, or under 40 years old. However, since reverse discrimination is less common, New Jersey courts have established a higher standard for employees who bring reverse discrimination or harassment claims by requiring them to present evidence that they work for the unusual employer that discriminates against the majority.

Warehouse A recent decision out of the United States District Court for the District of New Jersey denied an employer’s motion to dismiss a claim of reverse race discrimination, finding the employee had enough evidence to meet this heightened standard. The court explained there are two categories of evidence that employees can use to help meet this standard: (1) evidence that the specific employer has a reason to want to discriminate against the majority, and (2) evidence there is “something ‘fishy’” about the facts of the case that suggests the employer is discriminating.

The case was brought by Frank McQuillan, who worked for Petco Animal Supplies Stores, Inc., as an order picker at a distribution center in Monroe, New Jersey. Mr. McQuillan claims Petco harassed him because he is Caucasian.

Federal Court Permits Employee’s Sexual Harassment Claim to Proceed

May 14, 2014 | by Jonathan I. Nirenberg

A recent federal case from the District of New Jersey denied an employer’s motion for summary judgment on an employee’s sexual harassment case, paving the way for a jury trial. In the process, the court provided a good overview of what an employee needs to prove to be able to survive such a motion and get a case to a jury.

Joan Lane worked as a Material Handler for Sears Logistics Services, Inc. She was the only female who held this role on her floor. She claims the Material Handler Lead for her shift, Louis Fine, engaged in unwelcome conduct toward her including (1) calling her a “b*tch;” (2) calling her “dumb;” (3) “inviting her to [his] penis;” (4) claiming “all [she] wants is my d*ck;” (5) telling her to sit on his face; (6) making sexual gestures to her; and (7) claiming a temporary employee wanted her body. Ms. Lane eventually filed a lawsuit against her employer claiming Mr. Fine created a sexually hostile work environment for her in violation of the New Jersey Law Against Discrimination (LAD).

As the court explained, in a sexual harassment case the employee has to prove the conduct toward her (1) would not have occurred but for her gender, and (2) was severe or pervasive (frequent) enough (3) to make a reasonable woman believe the terms and conditions of her employment were changed and her work environment is hostile or abusive. The judge found Ms. Lane has enough evidence to meet each of those requirements. He indicated that even though Mr. Fine denied Ms. Lane’s allegations, for purposes of deciding a motion for judgment the court has to assume all of her testimony and evidence is true because it is the jury’s job to decide who is telling the truth. The judge further recognized that Ms. Lane’s evidence could support the conclusion that she was the victim of severe or pervasive sexual harassment. Moreover, he found a jury could conclude the harassment occurred because of her gender since she was the only female Material Handler on her floor and some of Mr. Fine’s conduct toward her was sexual in nature.