New Jersey Employment Lawyer Blog

Proving Age Discrimination When You Are Replaced by Someone Only Slightly Younger

January 21, 2014 | by Jonathan I. Nirenberg

Age discrimination occurs frequently but often is subtle. You may be certain you were fired because of your age, but not have any direct proof or “smoking gun” evidence. Fortunately, that does not necessarily mean you cannot prove your claim.

Employees who want to prove they were fired because of their age frequently try to show their employers replaced them with someone significantly younger. However, as a recent case demonstrates, this is not difficult to do and is not necessarily required.

Marion Cohen worked for the University of Medicine & Dentistry of New Jersey (UMDNJ) as an associate professor of anatomy and cell biology and injury sciences pursuant to a series of one, two and three-year employment contracts. In late 2008 or early 2009 UMDNJ informed her it was not going to renew her contract, supposedly due to budget cuts. At the time, Ms. Cohen was 69 years old.

Prosecuted for Trying to Prove Discrimination?

December 31, 2013 | by Jonathan I. Nirenberg

Last week, New Jersey’s Appellate Division refused to dismiss a criminal indictment against an employee who took documents from her employer in an attempt to support her employment discrimination claims. While it is a criminal case, it undoubtedly has implications for employment lawyers and individuals with employment law claims.

Ivonne Saavedra worked for the North Bergen Board of Education in Hudson County, New Jersey. She is being prosecuted for taking 367 documents from her employer, including 69 original documents. According to the prosecutor, many of those documents are “highly confidential” and contain “very sensitive” information. A grand jury indicted Ms. Saavedra for second-degree official misconduct and third-degree theft.

According to Ms. Saavedra, she took the documents to help prove she was a victim of gender and ethnic discrimination at her job. She is arguing she had the legal right to take the documents based on a previous New Jersey Supreme Court case, Quinlan v. Curtiss-Wright Corp. Quinlan establishes a balancing test to determine if an employee is protected from retaliation when she takes documents from her employer to help prove an employment discrimination case. I discussed Quinlan in a previous article, Can You Be Fired For Giving Confidential Company Documents to Your Employment Lawyer?

New Jersey Court Permits Employee to Proceed with Disability Discrimination Lawsuit

December 26, 2013 | by Jonathan I. Nirenberg

Earlier this month, a federal judge in New Jersey ruled that Bryan Maher can proceed with numerous employment law claims against his former employer, Abbott Laboratories.

Mr. Maher began working for Abbott in June 2008 as a Senior Distribution Specialist. In 2009, his sales numbers declined. By June the company began requiring him to participate in weekly one-on-one telephone coaching sessions. It also received several complaints from Mr. Maher’s customers. By late August 2009, the company placed Mr. Maher on an informal coaching plan and warned him he could be fired if his sales did not improve.

In October 2009, Mr. Maher was diagnosed with atrial fibrillation (an irregular heartbeat) which was exacerbated by workplace stress. The company granted his request to take four days off from work for testing.

New Jersey Appellate Court Permits Whistleblower Lawsuit to Proceed

December 4, 2013 | by Jonathan I. Nirenberg

Last month, in Gomez v. Town of West New York, the United States District Judge William Martini denied a motion to dismiss a civil rights lawsuit against the Town of West New York, New Jersey.

Alain Gomez worked for West New York as its Urban Enterprise Zone Coordinator. According to Mr. Gomez’s allegations, when Mayor Felix Roque ordered him to seek contributions to a private charitable not-for-profit organization the Mayor was running, Mr. Gomez refused because it was illegal to work for a private organization during his working hours for the Town. The Mayor then retaliated against Mr. Gomez by moving him into a small office without proper ventilation.

In response, Mr. Gomez filed a complaint under the New Jersey Public Employees Occupational Safety and Health Act (“PEOSHA”). The state eventually ordered West New York to provide Mr. Gomez safe working conditions. Around the same time Mr. Gomez also contributed information to a website called www.recallroque.com, and publicly accused Mayor Roque of misusing public resources.

New Jersey Court Clarifies How to Evaluate Constructive Discharge Claims

November 26, 2013 | by Jonathan I. Nirenberg

A constructive discharge occurs when an employer makes an employee’s working conditions so intolerable that she is forced to resign. This type of forced resignation is legally actionable if it caused by an illegal factor, such as unlawful discrimination or retaliation. Last week, New Jersey’s Appellate Division explained that when deciding if an employee has enough evidence to support this type of claim, a court has to view the evidence collectively rather than looking at each piece of evidence separately.

The woman who filed the case, Cheryl Smith, worked for New Jersey’s Department of Health and Senior Services (DHSS) as a Public Health Consultant II. Ms. Smith took on additional job duties, hoping she eventually would receive a promotion and raise. When it became clear that was not going to happen, Ms. Smith asked the New Jersey Department of Personnel (DOP) to determine if she either was entitled to a promotion, or was performing job duties above her salary grade.

Constructive Discharge Claims in New Jersey.jpg The DOP concluded Ms. Smith was performing work outside of her job title and should be promoted to an Education Program Specialist II with a corresponding raise. However, it found she was ineligible for the promotion because she did not have the required educational background. Accordingly, Ms. Smith asked DHSS to take away her extra job duties. When the DHSS refused, Ms. Smith went back to the DOP, which instructed her employer to remove certain job duties.

When is an Individual Personally Liable for a Company’s Overtime Violations?

November 13, 2013 | by Jonathan I. Nirenberg

Earlier this year, the Second Circuit Court of Appeals ruled that a company’s Chief Executive Officer can be held personally liable for a company’s overtime violations even if he had no personal involvement in violating the law.

In Irizarry v. Catsimatidis, a group of employees filed a class action overtime claim against Gristede’s Foods, Inc. They brought federal claims under the Fair Labor Standards Act (FLSA) as well as claims under the New York Labor Law. They also named the company’s Chief Executive Officer, its District Manager, and its Vice President as individual defendants in the lawsuit.

Eventually, the court ruled in favor of the employees, finding Gristede’s failed to pay them time-and-a-half for their overtime hours, in violation of the FLSA and New York State law. At the time the court did not decide whether any of the individual defendants were personally liable.

New York Law Does Not Protect Unpaid Interns From Sexual Harassment

November 8, 2013 | by Jonathan I. Nirenberg

Earlier this month, a federal judge ruled that neither the New York Human Rights Law (NYHRL) nor the New York City Human Rights Law (NYCHRL) protect unpaid interns from a sexually hostile work environment.

Lihuan Wang worked as an unpaid intern for Phoenix Satellite TV US, a company that produces Chinese language television news programs in the United States. She alleges one of the company’s bureau chiefs, Zhengzhu Liu, invited her to talk to him about her job performance after a group lunch meeting, and then convinced her to go to his hotel room based on the excuse he needed to drop off some personal belongings. During the car ride to the hotel Mr. Liu made Ms. Wang extremely uncomfortable by discussing the sexual prowess of a black man who had dated a woman he knew. In the hotel he complemented Ms. Liu’s eyes before bringing her to his room. Once in his hotel room he asked her why she is so beautiful, threw his arms around her, attempted to kiss her, and squeezed her buttocks before she left.

After Ms. Wang rejected Mr. Liu’s advances, he suddenly stopped showing any interest in hiring her as an employee, and claimed Phoenix could not hire her because of a supposed “visa quota.” When Ms. Wang subsequently asked Mr. Liu about a potential job with Phoenix, he invited her to go to Atlantic City with him for the weekend, supposedly to discuss job opportunities. Ms. Wang declined his invitation and gave up on the possibility of a paid position with Phoenix.

Jersey City Law Requires Employers to Provide Paid Sick Leave

October 31, 2013 | by Jonathan I. Nirenberg

The City of Jersey City recently passed a law that will require private employers to provide their employees 5 paid sick days per year. The law, which is the first of its kind in New Jersey, is scheduled to go into effect on January 24, 2014. New York City Passed a Paid Sick Leave Law earlier this year.

Employers are required to permit employees to use their paid time off for mental or physical health needs, including diagnosis, care, treatment and preventive care. Employees can use this time off to care for their own health needs, the health needs of their spouse, civil union partner, domestic partner, children, grandchildren, parents, grandparents and siblings; as well as for the health needs of the children, grandchildren, parents and grandparents of their spouses, domestic partners, or civil union partners.

In a statement released before the law was passed, Jersey City’s Mayor Steven M. Fulop explained that the right to take time paid medical leave time is “an issue that impacts the most vulnerable in our society and it is the right thing to do.” He further indicated that “[i]n New Jersey, some 1.2 million workers – that’s more than 1 in 3 of us – do not earn paid sick days.”

New Rights for Pregnant Employees in NYC

October 27, 2013 | by Jonathan I. Nirenberg

Mayor Michael Bloomberg recently signed a new law amending the New York City Human Rights Law (NYCHRL) to provide additional protections for women who are pregnant or giving birth. Specifically, the Pregnant Workers Fairness Act requires employers with at least four employees or independent contractors working for them to provide reasonable accommodations for pregnancy, childbirth, or related conditions even if the employee is not disabled. A reasonable accommodation is either a modification to the way a job is performed, or a change to a job duty, that permits the employee to perform the essential functions of her job. The new law goes into effect on January 30, 2014.

Under the NYCHRL, an employer can deny a reasonable accommodation if the employee still would not be able to perform the essential functions of her job, or if providing it would impose an undue hardship on its business. The employer has the burden to prove either of these defenses. In determining whether an accommodation would impose an undue hardship, a company can consider (1) the nature of the accommodation and its cost; (2) the financial and personnel resources of the location at which the accommodation would be provided; (3) the financial and other resources of the entire company; or (4) the composition of the company in terms of the workforce, geographic locations and other similar factors.

Under the Act, an employer must provide reasonable accommodations for pregnancy or child birth if it knows or should know the employee is pregnant. This suggests it is not necessary for an employee to request an accommodation for the employer to be obligated to provide one. Of course, the easiest way to ensure your employer knows you need an accommodation is to request it so there is no doubt your employer knows you need it. The same provision raises the question of what would happen if an employer tries to provide an unnecessary or unwanted accommodation. Presumably this should be addressed in a discussion between the employer and the employee (the “interactive process”), but there still could be issues if the employer believes it is legally obligated to provide an accommodation that the employee does not want.

Can an Indefinite Leave of Absence be a Reasonable Accommodation for a Disability?

October 21, 2013 | by Jonathan I. Nirenberg

Earlier this month, New York’s highest court ruled that although an employee is not entitled to take an indefinite leave of absence as a reasonable accommodation under the New York Human Rights Law (NYHRL), they might be entitled to do so under the New York City Human Rights Law (NYCHRL).

In the case, Giuseppe Romanello worked for Intesa Sanpaola S.p.A. (Intesa) for approximately 25 years. He experienced major depression and other medical conditions that prevented him from working. Accordingly, he took a leave of absence under the Family & Medical Leave Act (FMLA). After a five-month paid leave of absence, the company’s lawyer sent a letter to Mr. Romanello’s lawyer indicating that his FMLA leave time was about to run out, and asking if he intended to return to work or abandon his job. Mr. Romanello’s lawyer responded that although he had no intention of abandoning his job, Mr. Romanello still was medically unable to work for the company, and needed an “indeterminate” leave of absence. The company fired Mr. Romanello in response.

Mr. Romanello then filed a lawsuit claiming his employer discriminated against him because of his disability in violation of the NYHRL and the NYCHRL. Both of those laws prohibit employers from firing an employee because of a disability if the employee can perform his or her job with a reasonable accommodation. Depending on the circumstances, time off can be a reasonable accommodation for a disability.