New Jersey Employment Lawyer Blog

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.

EEOC Recognizes Pregnancy Discrimination Remains Widespread

February 16, 2012 | by Jonathan I. Nirenberg

Yesterday, the United States Equal Employment Opportunity Commission (EEOC) issued a Press Release regarding pregnancy discrimination in the workplace. The EEOC is a federal agency that helps enforce laws prohibiting employment discrimination claims based on race, color, religion, sex, pregnancy, national origin, age, and disability, as well as related retaliation claims.

The EEOC’s Press Release recognizes that “employers should not make decisions based on stereotypes and presumptions about the competence” of pregnant employees. But even though the federal Pregnancy Discrimination Act was passed more than 30 years ago, and “most pregnant women want and need to work,” pregnancy discrimination continues to be a major problem in the workplace.

The EEOC indicates that women make up 47% of today’s workforce, and are either the primary or co-primary breadwinners in almost two out of every three families. As a result, in the words of the Senior Advisor for the National Partnership for Women & Families, Judith Lichtman, “women cannot afford to lose their jobs or income due to pregnancy or childbirth.”

The Press Release notes that in addition to pregnancy discrimination, both male and female caregivers experience significant discrimination in the workplace. It recognizes that these forms of employment discrimination are becoming bigger problems, and that parents are struggling to balance their obligations at work with their obligations to their families. As I discussed in a previous article, in 2009 the EEOC issued guidelines regarding Discrimination Against Caregivers. The EEOC’s Press Release promises to “vigorously enforce the anti-discrimination laws as they apply to pregnant women and caregivers.”

Supervisors Can Be Held Liable Under Family & Medical Leave Act

February 13, 2012 | by Jonathan I. Nirenberg

Last week, the Third Circuit Court of Appeals< (the federal appellate court that covers New Jersey) ruled that supervisors can be held personally liable under the Family & Medical Leave Act of 1993 ("FMLA"). Employees who are covered by the FMLA have the right to take up to a total of 12 weeks off per year for their own serious health condition; for a serious health condition of their spouse, parent or child; for childbirth, adoption, or foster care; or to bond with a new child.

In Haybarger v. Lawrence County Adult Probation and Parole, the Third Circuit ruled that individuals who have sufficient control over an employee can be held personally liable if they violate the employee’s rights under the FMLA. The Court indicated that relevant factors a court should consider when determining whether an employee can be held personally liable under the FMLA include whether the individual (1) had the power to hire and fire the employee, (2) supervised and controlled the employee’s work, (3) set the employee’s compensation, or (4) maintained employment records for the employee. In addition to these factors, courts must consider any evidence that is relevant to determine the “economic realities” of the relationship between the employer and the employee. The Third Circuit also rule that this test applies to both public and private employers.

The plaintiff in the case, Debora Haybarger, worked as an office manager for Lawrence County Adult Probation and Parole. She frequently needed to take time off because of medical conditions including Type II diabetes, heart disease, and kidney problems. Her supervisor, William Mancino, made it clear he was unhappy that she was taking so much time off from work. He eventually placed Ms. Mancino on probation for six-months before he convinced his boss, Judge Dominick Motto, to fire her.

The District Court dismissed Ms. Haybarger’s claims against Mr. Mancino. It primarily relied on the fact that Mr. Mancino did not have the ultimate authority to fire Ms. Haybarger. But, applying its new test, the Third Circuit concluded that there is enough evidence for a jury to conclude that Mr. Mancino can be held personally liable under the FMLA. Among other things, it noted that he supervised Ms. Haybarger’s work, prepared her performance reviews, disciplined her, and influenced Judge Motto’s decision to fire her. Accordingly, it reversed the District Court’s decision so a jury can decide whether Mr. Mancino can be held personally liable for violating Ms. Haybarger’s rights under the FMLA.

New Jersey Supreme Court Reaffirms Lower Threshhold for Attorneys’ Fees Enhancements

February 3, 2012 | by Jonathan I. Nirenberg

Last week, in Walker v. Guiffre and Humphries v. Powder Mill Shopping Plaza, the New Jersey Supreme Court upheld the longstanding rule that a plaintiff can receive an enhanced attorney fee award under New Jersey laws that allow a prevailing plaintiff to recover his attorneys’ fees from the defendant. This applies to many New Jersey employment laws, including the New Jersey Law Against Discrimination (LAD), the Conscientious Employee Protection Act (CEPA), and the New Jersey Family Leave Act (FLA).

This right to a contingency fee enhancement dates back to Rendine v. Pantzer, a 1995 New Jersey Supreme Court case which discusses an employee’s right to recover his reasonable attorney’s fees if he wins a case under the LAD. After the court calculates the attorneys’ reasonable fee, it must determine whether and how much of an enhancement he should receive. The fee enhancement is intended to make up for the risk a lawyer takes when taking a case on a contingency fee basis. Contingency fee enhancements generally should range between five and fifty percent, and typically range between twenty and thirty-five percent. The maximum possible fee enhancement under New Jersey law is 100 percent, but such a high enhancement is available only in a “rare and exceptional case.”

In contrast, in April 2010, in Perdue v. Kenny A., the United States Supreme Court recognized that, under federal law, an attorney fee enhancement is permitted only in “rare” and “exceptional” circumstances. Fortunately, in Walker and Humphries the New Jersey Supreme Court decided not to follow Perdue, and instead continued to follow Rendine. As a result, employees who bring claims under New Jersey fee-shifting statutes such as the LAD, CEPA and the FLA are entitled to seek enhanced attorney fees. However, employees bringing claims under federal employment laws such as the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), and the Family & Medical Leave Act (FMLA), are rarely entitled to fee enhancements.

New Jersey Passes Trade Secrets Act

January 30, 2012 | by Jonathan I. Nirenberg

New Jersey law prohibits employees from disclosing or using certain confidential information that belong to their employers. Since many companies are sensitive about having their trade secrets used by their competitors, they frequently require employees to sign confidentiality and trade secret agreements prohibiting employees from using or disclosing their confidential information. Employees should be aware that earlier this month employers gained additional protection for their trade secrets when Governor Christopher Christie signed the New Jersey Trade Secrets Act into law.

What Does The New Jersey Trade Secrets Act Prohibit?

The New Jersey Trade Secrets Act prohibits individuals from misappropriating someone else’s trade secret. It defines “misappropriation” as (1) obtaining someone else’s trade secret from someone who you know or have reason to know obtained it improper means; or (2) disclosing or using someone else’s trade secret without their consent if you: (a) used improper means to learn it; or (b) knew or had reason to know it was obtained by improper means when you disclosed or used it; or (c) knew or had reason to know it was obtained by improper means before you materially change your position based on it. It defines a “trade secret” as information in any form that has actual or potential economic value because it is not generally known or knowable by others through a proper means, but only if the owner of the information uses reasonable efforts to keep it secret.

Religious Ministers Are Not Protected by Anti-Discrimination Laws

January 12, 2012 | by Jonathan I. Nirenberg

Yesterday, a unanimous United States Supreme Court ruled that ministerial employees of religious groups cannot bring employment discrimination claims against the religious groups for which they work. It ruled that those claims would violate the Establishment and Free Exercise Clauses of the First Amendment to the United States Constitution. Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission.

The case involved Cheryl Perich, a teacher for the Hosanna-Tabor Evangelical Lutheran Church and School. Ms. Perich took time off because she had a disability, narcolepsy. When she tried to return to work, the Church fired her. The Church specifically stated that Ms. Perich’s threat to bring a discrimination lawsuit against it was one of the reasons it fired her.

Ms. Perich then filed a Charge of Discrimination with the United States Equal Opportunity Commission (EEOC). She claimed the Church had wrongfully terminated her employment, in violation of the Americans with Disabilities Act (ADA) by firing her because she has a disability, and in retaliation for her threat to bring a disability discrimination lawsuit. The EEOC eventually filed a lawsuit against the Church, alleging it fired Ms. Perich in violation of the ADA.

The Supreme Court ruled that the First Amendment requires a ministerial exception to federal and state anti-discrimination laws. Specifically, it held that “requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so . . . interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs.” It concluded this would violate the First Amendment’s Free Exercise Clause because it would be a government interference with an internal church decision that impacts the church’s faith and mission. As a result, the Supreme Court ruled that Ms. Perich cannot proceed with her lawsuit.

The Court did not define who is a “minister” protected by this exception. However, it found Ms. Perich was a “minister” even though she was a teacher. It based its conclusion on facts including, among other factors, that (1) the Church commissioner her as a minister, (2) she had substantial religious training and had to pass an oral examination before she could be commissioned as a minister, (3) she held herself out as a minister and received a special housing allowance and tax benefits as a result, (4) she was assigned to perform her job “according to the Word of God,” (5) her job duties required her to teach the “Word of God” and to lead her students in prayer three times a day, and (6) twice a year she lead a school-wide chapel service.

The Supreme Court noted that it was not deciding whether the ministerial exception bars other types of lawsuits against religious groups, such as lawsuits for breach of employment contracts or personal injury claims against religious employers.

Is Your Non-compete Agreement Enforceable in New York?

January 11, 2012 | by Jonathan I. Nirenberg

Under New York law, non-compete agreements and other restrictive covenants in employment contracts are disfavored, and are enforceable only in limited circumstances. New York courts enforce non-competes only if all three of the following conditions are met:

1. The non-compete is reasonably limited in scope and duration;

2. The restrictions are no greater than necessary to protect the employer’s legitimate interests;

3. The non-compete is not harmful to the general public;

4. The non-compete is not unreasonably burdensome to the employee.

Even when those four requirements are met, an employer seeking to enforce a non-compete agreement has to prove it is not merely seeking to use the non-compete agreement to prevent competition. Instead, it has to show the non-compete is necessary to protect its legitimate interests, such as to prevent the employee from using or disclosing its trade secrets or confidential information, to protect the company’s goodwill, or to prevent special harm due to the unique nature of the employee’s job.

There are few bright line rules regarding when a non-compete agreement is reasonable. In deciding whether a restrictive covenant is reasonable, courts consider a number of factors and balance the right of the employee to work and earn a living against the importance of the restrictions to protect the employer’s business. In terms of duration, covenants not to compete for 6 months or less are generally reasonable. New York courts have approved non-competes lasting up to two years when the restrictions are otherwise reasonable and not too burdensome for the employee.

If an employee is receiving compensation from her former employer during the period when she is supposed to refrain from competition, such as severance pay or garden leave pay, the non-compete is more likely to be upheld.

Even when a non-compete agreement is reasonable, it is still unenforceable if the employer fired the employee without good cause. Likewise, a reasonable covenant not to compete is unenforceable if the employer breached the employee’s employment contract.

Attorneys, as well as stock brokers and other registered representatives under Financial Industry Regulatory Authority (FINRA), should be aware that special rules apply to their non-compete agreements in New York. For example, agreements that restrict attorneys from practicing law are unenforceable, except as a condition for receiving retirement benefits. Likewise, contracts that prohibit customers from continuing to use the services of their registered representative are not enforceable.

Job Candidate Can Pursue Age Discrimination Claim Based on Decision by Independent Contractor

December 28, 2011 | by Jonathan I. Nirenberg

Late last month, a Federal Judge in the Southern District of New York ruled that a job candidate can continue with his age discrimination claim against a prospective employer based on a discriminatory hiring decision made by independent contractors who had the apparent authority to make hiring decisions on the employer’s behalf. Apparent authority is when a company’s actions lead someone else to incorrectly believe that he or she is an employee or agent of the company. This decision follows an earlier decision by the Second Circuit Court of Appeals in the same case, which recognized that Employers Can Be Held Liable for Discriminatory Hiring Decisions Made By Independent Contractors.

The case, Halpert v. Manhattan Apartments, Inc., involves Michael Halpert, who was applying for a position as a “shower” for Manhattan Apartments, Inc. He was interviewed by Robert Brooks, a salesperson who worked for Manhattan Apartments as an independent contractor. Mr. Brooks did not have the authority to hire employees on behalf of Manhattan Apartments.

During Mr. Halpert’s job interview, Mr. Brooks indicated that Mr. Halpert was “too old” for the job. Several days later, Manhattan Apartments’ receptionist said the company was not hiring Mr. Halpert because “we were looking for someone younger.” Mr. Brooks then repeated that Mr. Halpert was not qualified for the job because of his age.

Mr. Halpert sued Manhattan Apartments, claiming it failed to hire him because of his age in violation of the Age Discrimination in Employment Act (ADEA). After the Second Circuit ruled that an employer could potentially be held liable for the actions of an independent contractor, Manhattan Apartments filed a motion for summary judgment, arguing that Mr. Halpert was not its employee or agent, and there was not enough evidence to prove Mr. Brooks had the apparent authority to hire employees on its behalf.

However, the District Court disagreed. It found there was enough evidence for a jury to conclude that Manhattan Apartments had the apparent authority to hire Mr. Halpert. This evidence includes the fact that Manhattan Apartments allowed Mr. Brooks to use its offices, to answer his phones by saying “Manhattan Apartments, Inc.,” and to use business card that identify himself as a “Licensed Assc. Broker” for “Manhattan Apartments Inc.” It also included the fact that Manhattan Apartments’ receptionist explained the decision not to hire Mr. Halpert by saying that “we were looking for someone younger.” It therefore denied Manhattan Apartments’ motion for summary judgment to potentially give Mr. Brooks an opportunity to prove his case at a trial.

New York City Clarifies Right to Reasonable Accommodations for Religious Beliefs

December 16, 2011 | by Jonathan I. Nirenberg

Earlier this year, Mayor Michael Bloomberg signed into law an amendment to the New York City Human Rights Law (NYCHRL). The amendment clarifies when employers in New York City are required to provide reasonable accommodations for the religious observances and practices of their employees and prospective employees.

Employers must provide reasonable accommodations unless they cause the employer an undue hardship. The amendment to the NYCHRL indicates that some of the factors to consider when determining if an accommodation causes an undue hardship include:

1. The nature and cost of the accommodation;
2. The financial resources of the facility;
3. The number of employees working at the facility;
4. The effect providing the accommodation would have the facility’s expenses and resources;
5. The overall financial resources of the employer;
6. The number of employees working for the employer;
7. The number, type, and location of the employer’s facilities;
8. The composition and functions of the employer’s workforce; and
9. How geographically spread out or close together the employer’s facilities are.

The amendment also makes it that the employer has the burden to prove an accommodation would impose an undue hardship on it. However, it makes it clear an employer is not required to provide a reasonable accommodation for an employee’s religious practice or belief if the employee would be unable to perform the essential functions of his or her job even with the accommodation.

New York State, New Jersey, and federal law already require employers to provide reasonable accommodations for employees’ religious belief. However, this law is significant because New York City law has been interpreted very broadly. For example, as discussed in a previous article, New York’s Appellate Division has ruled, in the context of reasonable accommodations for a disability, that an Extended Medical Leave Can Be Reasonable Accommodation Under New York Law.

New Jersey Appellate Court Rejects 50% Reduction to Attorney’s Fees Award in Whistleblower Lawsuit

December 9, 2011 | by Jonathan I. Nirenberg

The New Jersey Appellate Division recently ruled, in an employment law case in which the same law firm represented two clients, and only one of those clients won at trial, it was improper to reduce the attorney’s fee award by 50%. Many employment laws, including New Jersey’s Conscientious Employee Protection Act (CEPA) and the New Jersey Law Against Discrimination (LAD), allow an employee who wins his case to recover his reasonable attorney’s fees and costs. Ordinarily, when an attorney achieves excellent results for his client, he should be awarded all of his attorney’s fees. Otherwise, the judge can reduce the fee based on the time that he finds was unnecessary or unreasonable.

The case, Donelson v. DuPont, involved two employees. Joseph Donelson brought a whistleblower claim under CEPA and an age discrimination claim under the LAD. However, he lost his case at trial. The other employee, John Seddon, brought a whistleblower claim under CEPA. Seddon won at trial, and the jury awarded him $724,000 in economic damages, plus $500,000 in punitive damages. As I discussed in June, in an earlier decision stemming from Donelson, the New Jersey Supreme Court ruled that New Jersey Employees Can Recover Lost Wages if Forced to Resign Because Retaliation Caused Psychiatric Disorder. But the Court sent the case back to the Appellate Division to decide whether the trial court had properly reduced Seddon’s attorney’s fees.

Since Seddon and Donelson were represented by the same lawyer, and their cases were factually related, it was difficult to determine how much of the total time the lawyers spent on the case was necessary to Seddon’s case, and how much was only necessary for Donelson’s case. As a result, the trial judge decided to cut Seddon’s attorney’s fee award in half.

The Appellate Division ruled that, when the trial judge calculated Seddon’s attorney’s fees, it was proper to consider the fact that Donelson lost his LAD case. However, it found it was improper to reduce Seddon’s attorney’s fee by 50 percent because Donelson would have been a witness in Seddon’s case even if he was not a party to the lawsuit, and his attorney would have had to spend much of the same time either way. Accordingly, the Appellate Division sent the case back to the trial court to reassess the appropriate attorney’s fee.