New Jersey Employment Lawyer Blog

Rabner Allcorn Baumgart & Ben-Asher’s Discrimination Lawsuit Discussed in Bergen Record

May 11, 2012 | by Jonathan I. Nirenberg

This morning, I was quoted in the Bergen Record about a civil rights lawsuit I recently filed against the Borough of Bogota. Police Officer Regina Tasca alleges Bogota, as well as Police Chief John C. Burke, Captain James L. Sepp, Sergeant Robert Piterski, and Patrolman Jerome Fowler discriminated against and harassed her because she is gay and female. Officer Tasca also alleges the defendants retaliated against her because she spoke out about matters of public concern, and objected to violations of law including her objections to their gender and sexual orientation harassment. Officer Tasca’s case was filed in Federal Court in Newark, New Jersey.

As I discussed here last month, Officer Tasca’s case has received significant media attention. Since I wrote that article, her case has been the subject of numerous stories including:

NJ Town Tries to Fire Lesbian Officer for Stopping Cop Beat Down (WPIX News)
At disciplinary hearing, Bogota officer’s attorney criticizes investigation into 2011 incidents (Bergen Record)
Police video of emotionally disturbed person at heart of Bogota officer’s disciplinary hearing (NJ.com)
Suspended Bogota police officer gets public support (Bogota Bulletin)

Someone has even started an online petition seeking to Reinstate Officer Regina Tasca.

Bogota is currently holding a disciplinary hearing in which it is trying to fire Officer Tasca. The hearing is scheduled to resume on May 15, 16 and 17. The hearing is taking place at the Bogota Borough Hall, at 375 Larch Avenue, Bogota, New Jersey.

New Jersey Prohibits Harassment Based on Mistaken Belief that Employee is Jewish

May 8, 2012 | by Jonathan I. Nirenberg

In a ground-breaking employment law decision, New Jersey’s Appellate Division recently ruled that an employee can sue for a hostile work environment if his employer harasses him based on a mistaken belief that he belongs to a legally-protected group. Specifically, the court allowed an employee to proceed with his claim that his supervisors harassed him because they mistakenly believed he is Jewish, even though he is not.

Mr. Cowher’s Supervisors Harassed Him Because They Thought He Was Jewish

Myron Cowher worked as a truck driver for Carson & Roberts for approximately two years. His supervisors made anti-Semitic slurs to him on a daily basis. For example, they referred to him as “Jew Bag,” “Jew Bastard,” “you Hebrew,” “bagel meister,” “Jew burger” and “f—ing Hebrew.” They even told him “[i]f you were a German, we would burn you in the oven.” Mr. Cowher’s supervisors apparently made these comments because they thought he was Jewish.

Police Officer Fights Potential Termination and Prepares for Civil Rights Lawsuit

April 21, 2012 | by Jonathan I. Nirenberg

Over the past few weeks, one of our clients has been in the news. Specifically, Bogota New Jersey Police Officer Regina Tasca is currently in the middle of a disciplinary hearing that will determine whether she will lose her job. Her hearing has received significant media attention.

Officer Tasca is the only female and the only gay member of the Bogota Police Department. She has retained my firm to represent her in a civil lawsuit based on the fact that Bogota engaged in gender and sexual orientation discrimination and harassment toward her, and retaliated against her in violation of her civil rights and the New Jersey Conscientious Employee Protection Act (CEPA). She is waiting for the outcome of her disciplinary hearing before she files her lawsuit.

On April 18, Officer Tasca was interviewed live on the WPIX morning news for the story Officer Regina Tasca On Being Suspended For Not Lying About Fellow Cops’ Actions.

https://www.youtube.com/watch?v=EzqDrp0gvuM

On April 17, 2012 her case was the subject of a story on the WPIX evening news entitled Officer May Be Fired After Stopping Beatdown.

Officer Tasca’s hearing has also been the subject of an article in the Bergen Record. Officer Tasca’s disciplinary hearing is scheduled to resume on April 24, April 25.

EEOC Clarifies Reasonable Factors Other Than Age Defense

April 14, 2012 | by Jonathan I. Nirenberg

On March 29, 2012, the United States Equal Employment Opportunity issued new regulations regarding the Age Discrimination in Employment Act (ADEA). Specifically, the regulations relate to the “reasonable factors other than age” defense to disparate-impact claims. A disparate impact claim is when a company has a policy that appears to be neutral on its face, but in practice it disproportionately harms a legally protected group. A policy that has a disparate impacted based on age violates the ADEA unless it is based on reasonable factors other than age.

Under the new regulations, an employee who claims a company’s policy or practice has a disparate impact based on age is required to identify the specific policy he claims has a disparate impact on older workers. However, the employer has the burden to prove it has a reasonable basis for the policy other than age.

The regulations define “reasonable” to mean that an objectively reasonable employer would conclude the policy (1) is reasonably designed to meet a legitimate business purpose, and (2) was applied in a way that reasonably achieves that purpose. Some of the factors relevant to determining whether a factor on than age is reasonable include:

The extent to which the policy is related to the employer’s stated business purpose;
The degree to which the employer accurately defined and applied the policy, and provided guidance and training to the individuals who will apply it, in order to avoid age discrimination;
The extent to which the employer limited the discretion of supervisors when they apply the policy;
The degree to which the company evaluated the policy’s impact on older employees; and
The extent to which the policy harms older workers in terms of the degree of harm and the number of employees who are harmed; and the degree to which the employer took steps to minimize the harm, compared to the cost of taking those steps

The regulations further clarify that the defense is only available in disparate impact case. It is not available in disparate treatment cases, meaning cases in which an employee claims his employer intentionally discriminated against him because of age.

States Cannot Be Sued for Violations of FMLA Relating to Self Care Medical Leaves

April 10, 2012 | by Jonathan I. Nirenberg

Last month, the United States Supreme Court ruled that the “self-care” provisions of the Family & Medical Leave Act of 1993 (FMLA) cannot be enforced against a state, unless the state consents to being sued under the FMLA. The FMLA is a federal law that guarantees eligible employees the right to take up to 12 weeks off per year due to their own serious health condition (medical leaves), or due to a serious health condition of their spouse, parent, or child (family leaves). Under the Supreme Court’s decision, the FMLA’s family leave provisions still apply to states. However, the FMLA no longer requires states to permit their employees to take time off for their own medical conditions.

The basis for the Supreme Court’s decision is the 11th Amendment to the United States Constitution, which declares the states to be sovereign, and limits the federal government’s right to create laws under which states can be sued. The 14th Amendment, which forbids the states from denying equal protection of the law to anyone, provides a limited exception to the States’ sovereign immunity. In the context of federal laws like the FMLA, which are intended to protect against gender discrimination, that exception only applies if the law is intended to correct a well-documented pattern of gender discrimination.

In Coleman v. Court of Appeals of Maryland, the Supreme Court recognized that when Congress passed the FMLA, it had strong evidence that states were discriminating against women based on sex with respect to their family-leave policies. It therefore had previously recognized that the FMLA’s family-leave provisions do apply to states. However, Coleman concludes that Congress did not have enough evidence of gender discrimination with respect to medical leaves for an employee’s own serious health to justify applying those provisions of the FMLA to states. It reached this conclusion even though Congress apparently intended the FMLA’s medical leave provisions to protect women with pregnancy-related illnesses, but in a way that did not discriminate against men by protecting all medical leaves, and not just leaves for pregnancy-related conditions.

The Supreme Court’s ruling does not merely mean that the FMLA’s self-care provisions are unenforceable against states like New Jersey and New York. It also applies to subdivisions of the state, such as towns, cities, boroughs, villages, and other municipalities. It also applies to and municipal police departments, fire department, schools districts, and other state and local government entities. However, it does not eliminate protections against pregnancy or disability discrimination committed by state and local government provided by other laws such as the American’s with Disabilities Act (ADA), the Pregnancy Discrimination Act (PDA), the New Jersey Law Against Discrimination (NJLAD), New Jersey’s Family Leave Act (NJFLA), the New York Human Rights Law (NYHRL), and the New York City Human Rights Law (NYCHRL).

New Jersey Court Finds Employer Waived Right to Enforce Arbitration Agreement

March 29, 2012 | by Jonathan I. Nirenberg

Earlier today, New Jersey’s Appellate Division ruled in favor of one of my clients, Karen Cole, holding that her former employer waived its right to enforce her arbitration agreement because it waited too long to raise it as a defense. As a result, her case can proceed to a jury trial instead of having her claims decided in arbitration.

Ms. Cole, a nurse anesthetist, worked at Jersey City Medical Center through her employer, Liberty Anesthesia Associates, LLC. In 2007, Jersey City revoked her hospital privileges. Liberty fired Ms. Cole shortly thereafter. Ms. Cole has evidence that Jersey City’s decision to revoke her privileges, and Liberty’s decision to fire her, were due to the fact that she has a disability, Ehlers Danlos Syndrome, and because she objected to illegal practices at the hospital. Accordingly, she sued Jersey City for disability discrimination in violation of the New Jersey Law Against Discrimination (LAD), and retaliation in violation of New Jersey’s whistleblower law, the Conscientious Employee Protection Act (CEPA). She later named Liberty as a defendant, alleging it discriminated and retaliated against her when it fired her.

Liberty was a defendant in Ms. Cole’s case for 20 months, and actively participated in the litigation during that period. However, it did not raise arbitration as a defense until three days before the trial. Liberty claims it waited so long because Ms. Cole did not have an arbitration agreement with Jersey City, and it believed it made more sense to keep the entire case together in court. However, after Ms. Cole settled her claims against Jersey City a few weeks before the scheduled trial, Liberty decided to enforce the arbitration agreement. Liberty filed its motion to compel arbitration only 3 days before the scheduled trial date.

The trial judge found that Ms. Cole was required to bring her case against Liberty in arbitration, and dismissed her case from court. But the Appellate Division reversed. In Cole v. Jersey City Medical Center, it ruled that Liberty waived its right to enforce Ms. Cole’s arbitration agreement by intentionally waiting until the eve of trial before it raised it as a defense. It concluded that Liberty could have sought to require Ms. Cole’s to arbitrate her claims against it earlier, but chose not to do so for strategic reasons. It also found that Ms. Cole was prejudiced by Liberty’s delay, since she had to spend time preparing for a jury trial, which is much more time consuming than preparing for arbitration. As a result, it ruled that Liberty waived its right to require Ms. Cole to have her case decided in arbitration, and that Ms. Cole is entitled to a jury trial. The Appellate Division’s opinion was approved for publication, meaning it is a binding legal precedent.

FMLA Could Protect Employee Who Took Medical Leave for More Than 12 Weeks

March 14, 2012 | by Jonathan I. Nirenberg

The Family & Medical Leave Act of 1993 (FMLA) is a federal employment law that, among other things, permits covered employees to take up to 12 weeks off per year because of a serious health condition. Employers are required to inform their employees about their rights under the FMLA within 5 days after they request time off for a leave that is covered by the FMLA. For example, an employer must tell an employee that she is guaranteed the right to return to her job if she returns from her medical leave within 12 weeks.

Earlier this year, in Antone v. Nobel Learning Communities, Inc., Judge Joseph E. Irenas of the United States District Court for the District of New Jersey recognized that an employer can violate the FLMA if it fires an employee because she failed to return to work from an FMLA leave within 12 weeks if:

The employer did not tell the employee when her FMLA leave expired, and
The employee would have returned to work within 12 weeks if the employer had provided her the proper information.

The plaintiff in that case, Karen Antone, had numerous health issues including Cellulitis, low cranal spinal fluid, chronic headaches and migraines, and complications from vascular surgery. On May 28, 2009, she requested a leave of absence so she could receive medical treatment. When she filled out an FMLA certification form, Ms. Antone’s physician indicated that she expected to return to work on August 28, 2009. However, August 28, 2009 was 12 weeks and 8 days after Ms. Antone started her FMLA leave.

Nobody at Nobel told Ms. Antone that the FMLA only guaranteed her right to return to her job for 12 weeks, or that she had to return to work by August 20 to be guaranteed her job back under the FMLA. Rather, the company waited until late August, and then fired Ms. Antone because her doctor had not cleared her to return to work by August 20.

Ms. Antone then filed a lawsuit alleging that Nobel had interfered with her rights under the FMLA by failing to reinstate her to her job at the end of her FMLA leave. The company sought to dismiss her case, arguing that Ms. Antone was not protected by the FMLA because she took more than 12 weeks off. But Judge Irenes denied the motion based on the fact that Ms. Antone alleges she would have returned to work by August 20 if she had known that was her deadline, and that the last 8 days of her medical leave were just a precaution. In fact, her doctor indicated that he would have cleared her to return to work on August 20 if he had known she was entitled to take only 12 weeks off.

Novartis Settles Class Action Overtime Lawsuit for $99 Million

March 6, 2012 | by Jonathan I. Nirenberg

Earlier this year, Novartis Pharmaceuticals Corporation agreed to a $99 million settlement of a class action overtime lawsuit brought by its sales representatives. The settlement is still subject to final approval by a judge. A final hearing to approve the settlement is scheduled for May 31, 2012. Novartis, an affiliate of Swiss drug maker Novartis AG, has its headquarters in East Hanover, New Jersey.

The overtime lawsuit against Novartis was filed in 2006 in a federal court in Manhattan. More than 7,000 current and former sales representatives joined the class action. They claim Novartis failed to pay them overtime, in violation of the Fair Labor Standard Act (FLSA). The FLSA is a federal law that requires companies to pay nonexempt employees time-and-a-half when they work more than 40 hours in a week.

Novartis settled the case before the United States Supreme Court could rule whether pharmaceutical companies are required to pay overtime to their salespeople in another similar lawsuit. Specifically, Christopher v. GlaxoSmithKline is an overtime lawsuit against GlaxoSmithKline which is currently on the Supreme Court’s 2012 docket. The outcome of that case is likely to decide whether salespeople working for pharmaceutical companies are entitled to be paid time-and-a-half when they work overtime. The oral argument in Christopher is scheduled for April 16, 2012.

Companies often refuse to pay their employees overtime, either because they are unaware of the requirement, or because they do not realize the employee is entitled to it. But most employees, including both hourly and salaried employees, are entitled to overtime pay when they work more than 40 hours per week.

New Jersey Judge Refuses to Seal Settlement Agreement in Overtime Lawsuit

March 1, 2012 | by Jonathan I. Nirenberg

Earlier this year, a New Jersey Judge refused to file the terms of a settlement agreement in an overtime lawsuit under seal. Specifically, Judge Jose L. Linares of the United States District Court for the District of New Jersey ruled the employer had not overcome the strong presumption of public access to the terms of settlements in cases under the Fair Labor Standards Act (“FLSA”). The FLSA is a federal wage and hour law that requires employers to pay most “nonexempt” employees time-and-a-half when they work more than 40 hours in a work week.

The case, Brumley v. Camin Cargo Control, Inc., involved three separate collective action lawsuits against Camin Cargo Control, Inc. Between the three cases, 112 employees alleged Camin failed to properly pay them overtime wages in violation of the FLSA. Five of those employees also claimed the company retaliated against them in violation of the FLSA.

Last year, the parties agreed to settle the case for $3.9 million dollars, or an average of nearly $35,000 per plaintiff. As is typical in employment law cases, the Settlement Agreement included a confidentiality provision that required the parties to keep the terms of the settlement private. But since the FLSA required a judge to approve the settlement, the parties had to submit the Settlement Agreement to the Court for its approval. As a result, the employer filed a motion requesting permission to file the Settlement Agreement under seal.

But Judge Linares denied the defendant’s motion to file the Settlement Agreement under seal. He explained that settlements under the FLSA are different from most other settlements. First, the public has an interest in seeing the terms of the settlement agreement so they can understand the reasons why the judge approved or rejected it. Second, the FLSA does not merely protect the rights of the individuals who bring claims under it. It also protects the separate public interest in “assuring that employees wages are fair and thus do not endanger ‘the national health and well-being.'” As a result, he ruled there is a strong presumption that settlement agreements in FLSA cases should be publically available. He concluded that Camin failed to sufficiently rebut this presumption, and therefore denied its motion to file the settlement agreement under seal. You can view the Settlement Agreement here.

EEOC Explains When Employers Violate ADA By Requiring High School Diploma

February 22, 2012 | by Jonathan I. Nirenberg

Last week, the United States Equal Employment (EEOC) answered questions about when requiring a high school diploma violates the Americans with Disabilities Act. The EEOC provided this information because it created confusion last November when it issued an informal letter discussing how the ADA applies to standards for job qualifications.

Group of Graduates.jpg Specifically, in November 2011 the EEOC issued a letter which indicates that an employer would violate the ADA if it rejected a job candidate because he does not have a high school diploma if a disability prevented the job candidate from graduating from high school, unless the employer proves the diploma requirement “is job related and consistent with business necessity.” The letter also indicates that an employer would “not be able to make this showing, for example, if the functions in question can easily be performed by someone who does not have a diploma.” The EEOC received substantial backlash to its position, including many who claimed it had created a disincentive to graduate from high school.

The EEOC’s article last week clarifies that the ADA does not prohibit employers from requiring job applicants to have high school diplomas. Rather, under limited circumstances a company might have to allow a job candidate to show he is qualified for the job if a disability made prevented him from graduating from high school. For example, an individual who could not graduate from high school because of a disability might prove he is qualified for a job by showing his work experience in similar jobs.

The EEOC’s article also makes it clear that employers are not necessarily required to hire a job candidate who is disabled. Companies have the right to select the job candidate who is best qualified for the job.

What is still unclear is whether the employer or the employee has the burden of proof when a company rejects a job candidate whose disability prevented him from graduating from high school. The EEOC’s November letter indicates that employers must demonstrate that a high school diploma is necessary for the job. However, its February article indicates that the disabled employee has to prove he is qualified for the job even though he did not graduate from high school. It seems likely the EEOC originally intended to place the burden on the employer, but changed its mind in response to the backlash it received last November.