New Jersey Employment Lawyer Blog

New York City Amends Human Rights Law to Protect Interns From Discrimination

May 1, 2014 | by Jonathan I. Nirenberg

Last last year, I discussed a federal case, Wang v. Phoenix Satellite TV US, Inc., which concludes that New York Law Does Not Protect Unpaid Interns From Sexual Harassment. While that still may be true in the rest of New York State, New York City recently amended its anti-discrimination law to make it clear that both paid and unpaid interns are protected by the New York City Human Rights Law (NYCHRL).

Specifically, on April 15, 2014, Mayor Bill de Blasio signed into law an amendment to the New York City administrative code which will protect interns in the same way the code currently protects employees. The law goes into effect sixty days after it was signed. As a result, starting on June 16, 2014, New York City law will protect interns who work in Manhattan, Brooklyn, the Bronx, Queens and Staten Island from discrimination based on their actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation, alienage, citizenship, or status as a victim of domestic violence, a sex offense or stalking. Likewise, New York City law will prohibit employers from harassing interns based on any of those categories, including prohibiting sexually harassment. It also will prohibit employers from retaliating against interns because they complain about employment discrimination or harassment in the workplace.

The new law defines “intern” to include anyone who (1) receives training or supplements the training they are receiving in an educational environment and (2) receives work experience for the benefit of an employer, and (3) does so under the close supervision of an employer’s staff. It includes such individuals irrespective of whether he or she is paid or unpaid. It is unclear whether this may leave a gap of individuals who do not fit the administrative code’s definition of either “employee” or “intern,” such as individuals who receive the required training or work experience, but not both. However, the alternative potentially would have covered students who receive training for universities and other educational institutions, a group which the New York City Council apparently did not intend to protect.

Third Circuit Finds Individual Owners and Successor Company Can Be Liable for Overtime Violations

April 16, 2014 | by Jonathan I. Nirenberg

The Third Circuit Court of Appeals recently reinstated an employee’s class action overtime pay lawsuit under Fair Labor Standards Act (FLSA) and the New Jersey Wage and Hour Law (NJWHL). In doing so it recognized successor companies can be liable for their predecessors’ overtime violations, and individual owners and supervisors can be held personally liable under both of those laws.

Patricia Thompson was hired by Security Atlantic Mortgage Company as a mortgage underwriter in June 2009. Security Atlantic quickly assigned her to provide training at a related company, Real Estate Mortgage Network (REMN). In February 2010, Security Atlantic stopped doing business and Ms. Thompson began working directly for REMN. Otherwise, her job and the business remained essentially the same.

Ms. Thompson claims Security Atlantic and REMN both failed to pay her and other mortgage underwriters time-and-a-half when they worked more than 40 hours per week, in violation of both the FLSA and the NJWHL. Specifically, she alleges mortgage underwriters worked through lunch and at home to complete their assignments on time, but were not paid overtime because the companies misclassified them as exempt employees.

Inability to Sit for Long Time Can Be Disability Under Americans with Disabilities Act

April 9, 2014 | by Jonathan I. Nirenberg

The Americans with Disabilities Act (ADA) is a federal law that prohibits employers from discriminating against employees because they are disabled. It defines a “disability” as a physical or psychological impairment that substantially limits a major life activity. As a result, not every impairment is a disability. In contrast, the New Jersey Law Against Discrimination (LAD), the New York Human Rights Law (NYHRL) and the New York City Human Rights Law (NYCHRL) all have significantly broader definitions of the term “disability” including relatively minor mental and physical impairments.

Late last month, the Second Circuit Court of Appeals recognized that an impairment that prohibits an employee for sitting for too long can be a disability even under the ADA. The employee, Carmen Parada, worked for Banco Industrial de Venezuela, C.A. Approximately six months after she started working for the bank, Ms. Parada fell and hurt her back. As a result, she no longer is able to sit for a prolonged period. According to one of her medical reports, she is able to sit for only 15 minutes before she has to stand.

Ms. Parada asked the bank for an ergonomic chair which she believed would have allowed her to perform her job. The bank did not respond to her requests so she asked again, this time offering to pay for the chair herself. When she still did not receive any response she told the bank she could not continue to perform her job without a new chair. When the bank’s Operations Manager finally told Ms. Parada he would discuss her request when he returned from a business trip she complained to the Compliance Officer and requested a leave of absence. Ultimately, the bank fired Ms. Parada, claiming she failed to provide sufficient documentation to prove she was disabled and needed a medical leave, and declaring it considered her to have abandoned her job.

Firing Employee Eight Days After Objection Enough to Prove Retaliation

April 1, 2014 | by Jonathan I. Nirenberg

There are many ways to prove a retaliation claim. Often, a key factor is the closeness in time between when the employee blows the whistle and when the employer takes an adverse employment action against her, such as firing or demoting her. In most situations timing alone is not enough to prove retaliation. However, timing alone can be enough if it is “unusually suggestive” of retaliation.

There is no clear answer to how little time can be considered “unusually suggestive.” But in a recent case the United States District Court for the District of New Jersey ruled a jury can find retaliation because the employer fired the employee eight days after her last protected activity.

Zalinskie v. Rosner Law Offices, P.C., Linda Zalinskie claims her employer, Rosner Law Offices, P.C., fired her because she complained about violations of the Fair Labor Standards Act (FLSA). In contrast, the firm claims it spoke to Ms. Zalinskie about problems with her job performance and attitude nearly a year before she made these complaints, moved her into a new position at the time, and ultimately fired her because her performance and attitude did not improve.

Court Permits Sexual Harassment Claim Even Though Harasser Treated Both Women and Men Poorly

March 24, 2014 | by Jonathan I. Nirenberg

Earlier this month, the United States Court of Appeals for the Second Circuit issued an unpublished summary order which reinstates an employee’s sexual harassment claim that had been dismissed. However, in a separate published opinion issued on the same day the court upheld the dismissal of Ms. Castagna’s related tort claims because she did not file her lawsuit until after the statute of limitations had expired.

Patricia Castagna worked for Majestic Kitchens, Inc., as its receptionist. She alleges Bill Luceno, who is the owner of the company and was Ms. Castagna’s supervisor, harassed her because of her sex in violation of Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law (“NYSHRL”). Prior to the appeal, the trial court had dismissed those claims because Ms. Castagna admitted Mr. Luceno treated virtually all of the company’s employees poorly.

In support of her sexual harassment claims, Ms. Castagna claims Mr. Luceno physically threatened her and two other female employees with physical violence, but never physically threatened any male employees. For example, she claims that on one occasion he screamed and cursed before he shoved her computer monitor toward her, which caused her to fear for her safety. Although she acknowledges Mr. Luceno’s had outbursts toward both male and female employees of Majestic, she claims the most extreme outbursts were directed toward women, and that during some of his outbursts he referred to women as “bitch[es].”

Sarbanes-Oxley Act Protects Whistleblowers Employed by Private Companies

March 17, 2014 | by Jonathan I. Nirenberg

Earlier this month, the United States Supreme Court ruled that the whistleblower protection of the Sarbanes-Oxley Act applies not only to employees of publicly traded companies, but also to employees of privately held companies who perform work for the publicly traded company as contractors or subcontractors.

The Sarbanes Oxley Act is a 2002 law that was passed in 2002 in response to the collapse of Enron Corporation. It includes an anti-retaliation provision that prohibits public companies, as well as their employees and agents from firing, harassing, demoting, suspending, or otherwise discriminating against employees who blow the whistle on certain activities prohibited by the Act.

The case, Lawson v. FMR LLC, involves the Fidelity family of mutual funds, which has no employees of its own. The whistleblowers were Jonathan M. Zang and Jackie Hosang Lawson, both of whom were employed by different subsidiaries of the same parent company, FMR LLC. Their employers are private companies that manage and advise the Fidelity family of mutual funds.

Newark New Jersey Passes Paid Sick Leave Law

March 11, 2014 | by Jonathan I. Nirenberg

The City of Newark recently enacted an ordinance requiring certain employers to provide paid sick leave to their employees. Newark is now the second city in New Jersey to pass a paid sick leave law. As discussed in a previous article, effective January 24, 2014, Jersey City Law Requires Employers to Provide Paid Sick Leave.

To Whom Does the Law Apply?

The Ordinance applies to most employees who work in Newark for at least 80 hours per year. However, it does not apply to the federal, state or local government, or to employees of any school district or Board of Education, including Rutgers University.

Court Finds Retaliation Based on When Employee Was Replaced

February 25, 2014 | by Jonathan I. Nirenberg

To prevail in a retaliation lawsuit you have to prove your employer took an adverse action (such as demoting or firing you) because you engaged in a legally-protected activity. For example, if your employer fired you after you complained you were not being properly paid for working overtime you would have to prove there was a connection between your complaint and the company’s decision to fire you. This is called a “causal link.”

There are many different ways to prove a causal link in a retaliation case. Some of the most common ways include evidence your employer fired you quickly after you objected, a decision-maker was angry about your objection, or the company’s explanation for firing you is false. A recent New Jersey case, Goldsmid v. Lee Rain, Inc., finds another potential way to prove retaliation: Based on evidence the employer had someone ready to replace you very quickly after it fired you.

Craig Goldsmid worked for Lee Rain, Inc. in Vineland, New Jersey, most recently in the company’s warehouse. Although Lee Rain initially paid him by the hour, in early 2010 it began paying him a salary.

Can Your Former Employer See Your Current Employment Records as Part of Your Discrimination Lawsuit?

February 13, 2014 | by Jonathan I. Nirenberg

A case decided earlier this month addresses a question that periodically comes up in employment law cases: Will your former employer be able to obtain your personnel file from your current employer if you file an employment discrimination or retaliation lawsuit?

During an employment lawsuit, the employer and employee engage in a process called discovery. Discovery involves an exchange of information between the parties, including requests for documents, written questions called interrogatories, and oral questions at a deposition. In addition, either side has the right to issue subpoenas requiring non-parties to provide relevant documents and information. The purpose of discovery is to allow each side to gather evidence to support its case and evaluate the other side’s position.

Discovery is supposed to be broad. However, it has limits. For example, it only is supposed to be used to try to learn something relevant about your case, and not to harass or punish the other side. Unfortunately, there often are disagreements about whether a discovery request is being used for a proper purpose. The question of whether your former employer is entitled to obtain copies of records from your current employer is one such issue that can arise during an employment law case.

New Jersey Court Finds Protection for Whistleblower Who Objected as Part of Job

February 5, 2014 | by Jonathan I. Nirenberg

Last week, New Jersey’s Appellate Division revisited the question of whether an employee who blows the whistle about an activity related to his job duties can be protected by New Jersey’s Conscientious Employee Protection Act (CEPA). This time, the court concluded the employee can proceed with his claim even though he blew the whistle about an issue related to his job.

There is a split in legal authority over this issue. As I discussed in a previous article, New Jersey’s Whistleblower Law Protects “Watchdog” Employees Whose Jobs Require Them to Report Violations of Law, last September another panel of the Appellate Division ruled an employee whose job is focused on corporate safety or compliance issues is protected by CEPA only if he (1) “pursued and exhausted all internal means of securing compliance” or (2) “refused to participate in the objectionable conduct.” In contrast, several previous cases have ruled that employees who object about violations of the law in the course of performing their jobs are not protected by CEPA.

The latest case to address this issue is Dukin v. Mount Olive Township Board of Education. Robert Dukin worked for the Mount Olive Township Board of Education as an auto-mechanic. In early January 2010, he told his supervisor about a number of safety concerns about a particular school bus. The next time Mr. Dukin was at work, he saw a bus driver preparing to drive the unsafe bus. After confirming the bus had not been repaired, Mr. Dukin told the bus driver not to drive it. He then reported this to the New Jersey Motor Vehicle Commission’s on-site inspector, who directed Mount Olive to take the bus out of service.