New Jersey Employment Lawyer Blog

New Financial Incentives and Legal Protections for Whistleblowers

September 10, 2010 | by Jonathan I. Nirenberg

On July 21, 2010, President Obama signed into law the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010. Among its numerous provisions, the new law contains important economic incentives and legal protections for certain financial whistleblowers. As a result, it creates new employment law rights for employees in both New York and New Jersey.

New Economic Incentives for Whistleblowers

With some limited exceptions, if a whistleblower brings new information about a violation of the Dodd-Frank Act to the attention of the Securities and Exchange Commission (“SEC”), and the SEC recovers a monetary sanction of more than $1 million, then the whistleblower will receive between 10% and 30% of the sanction the SEC receives. In deciding the percentage the whistleblower will receive, the SEC is required to consider: (1) how significant the whistleblower’s information was to the successful recovery; (2) how much assistance the whistleblower (and any lawyer representing the whistleblower) provided to the SEC; (3) the benefit of deterring employers from future violations of the Dodd-Frank Act by giving financial incentives to whistleblowers; and (4) other relevant factors the SEC will establish through rules and regulations.

New Jersey Court Allows Harassment Claim Based on Relatively Minor Acts

September 2, 2010 | by Jonathan I. Nirenberg

On July 28, 2010, New Jersey’s Appellate Division ruled that a former employee of the Atlantic City Board of Education could proceed with his lawsuit. Even though the decision in Clarke v. Atlantic City Board of Education is not a legally binding precedent, it is noteworthy because it recognizes that a few relatively minor discriminatory actions potentially can be enough to prove a harassment claim.

The case was filed by Melvin Clarke, who had been an Assistant Superintendent for the Board of Education. He has a disability which limits his ability to walk, and as a result uses a power scooter and a cane. In February 2002, he filed a disability discrimination lawsuit against the Board and two of its employees. As part of a settlement of that case, the Board agreed to give Mr. Clarke a raise of $5,000 per year, and guaranteed his annual salary would remain at least $5,000 higher than the other Assistant Superintendents in the School District.

In June 2006, Mr. Clarke sued the Board again, this time alleging both retaliation and disability discrimination. The trial court dismissed his claim, finding he did not allege an “adverse employment action.” To win in an employment discrimination case, an employee must show he suffered an adverse employment action, such as being fired or demoted because of his or her age, race, gender, disability, or another legally protected category.

As the Appellate Division explained, an adverse employment action has to be serious enough to alter the employee’s compensation, terms, conditions, or privileges of employment, deprived the employee of future job opportunities, or had another significant negative effect on his or her job. Examples include being fired, demoted, suspended, passed over for a promotion, forced to resign, or harassed. Harassment is when a company subjects an employee to many separate but relatively minor actions, each of which might not be actionable on its own, but when combined, make up a pattern of discrimination or retaliation conduct.

The Appellate Division reversed the trial court’s decision because it found Mr. Clarke’s allegations, if true, could establish a hostile work environment harassment claim. His relevant allegations included the fact that the Board (1) moved his office to the sixth floor of the building and further from a bathroom, even though he has difficulty walking, and did not relocate his office after he was stranded on the sixth floor during a fire alarm; (2) refused to develop a plan to provide reasonable accommodations for his disability; and (3) violated his settlement agreement by failing to keep his salary at least $5,000 more than the other Assistant Superintendents. Since the appellate court found Mr. Clarke’s allegations could be enough to prove a harassment claim, it sent his case back to the trial court to give him a chance to prove his case.

The question of whether a particular situation is bad enough to be a legally actionable harassment is very fact specific. It depends on factors such has how frequently the harassment happens, how severe the harassment is, and who is committing the harassment.

New Jersey Supreme Court Agree It’s Illegal Not to Renew Contract Because Employee Is Over 70 Years Old

August 25, 2010 | by Jonathan I. Nirenberg

In June 2009, I discussed the New Jersey Appellate Division’s age discrimination ruling that it is illegal for an employer not to renew an employment contract because the employee is over 70 years old. The New Jersey Supreme Court recently agreed, and affirmed the Appellate Division’s decision.

Specifically, in Nini v. Mercer County Community College, New Jersey’s highest court ruled that a company’s decision not to renew an employment contract is more like firing a current employee than deciding not to hire a job candidate. As a result, the Court concluded that even though the New Jersey Law Against Discrimination (LAD) allows employers to refuse to hire employees because they are over 70 years old, that exception does not apply when a company decides not to renew an employee’s contract after he or she turns 70.

In explaining its decision, the New Jersey Supreme Court stated that the purpose of the LAD is to protect New Jersey citizens “from all forms of discrimination in employment and, in particular, to protect our older citizens from being forced out of the workplace based solely on age.” It also indicated that the over 70 exception is meant to allow employers to avoid the cost of training new employees who have “limited long-term prospects.” However, that does not apply to an employee who already has been working for the company and does not need training.

New Jersey Makes It Harder to Receive Unemployment Benefits

August 20, 2010 | by Jonathan I. Nirenberg

On July 2, 2010, Governor Christopher Christie signed into law an amendment to the New Jersey Unemployment Compensation Act, which makes it more difficult for employees fired for work-related misconduct to receive New Jersey unemployment insurance benefits. Specifically, the amended law creates a new category of disqualification for “severe misconduct.” It also extends the period of disqualification for employees fired for misconduct that was not severe by two weeks, bringing the disqualifiaction up to eight weeks in total. Both changes were originally proposed by Governor Christie but not included in the Senate Bill. The Governor subsequently conditionally vetoed the unemployment insurance Bill unless the Senate accepted his revisions.

The first of these changes is likely to have a substantial impact on employees in New Jersey. Before, employees who were fired from their jobs would be completely disqualified from collecting unemployment benefits only only if they committed a crime connected with the work. Now, a complete disqualification also applies to employees who lost their jobs as a result of:

repeated violations of an employer’s rule or policy;

Court Clarifies When Non-Residents Are Protected Under New York’s Anti-Discrimination Laws

August 10, 2010 | by Jonathan I. Nirenberg

In an article I wrote last May, Employees Working in Other States Can Sue Under New York’s Anti-Discrimination Laws, I discussed Hoffman v. Parade Publications. In that age discrimination case, New York’s mid-level appellate court ruled that the New York City Human Rights Law (NYCHRL) applies to non-residents of NYC if the discriminatory decision was made in NYC. It also ruled that the New York State Human Rights Law (NYSHRL) applies to non-residents of NYC if the discriminatory employment decision was made in New York State. However, last month New York’s highest court, the Court of Appeals, reversed that decision and set a new standard.

The Court of Appeals ruled that for the NYSHRL to apply, the employee bringing the discrimination lawsuit must either be a resident of New York State, or show that the impact of the discrimination was felt within New York State. Likewise, it ruled the NYCHRL applies only if the victim of discrimination is a resident of New York City, or the impact of the discrimination was felt in New York City.

The Court of Appeals did not explain what kind of “impact” is necessary for the NYCHRL or the NYSHRL to apply to a non-resident. Presumably, New York law protects employees who primarily work in New York, no matter where they live. However, the Court of Appeals found Mr. Hoffman, who lived and worked in Georgia, was not protected by the NYSHRL or the NYCHRL even though his boss supervised him, made the decision to fire him, and called to fire him, all from the company’s headquarters in New York City. In other words, the court found those facts were not enough to show the discriminatory employment decision had an “impact” on New York.

Department of Labor Says FMLA Covers Non-Traditional Parents

August 2, 2010 | by Jonathan I. Nirenberg

Among other things, the Family & Medical Leave Act (FMLA) allows covered employees to take off up to 12 weeks from work per year to care a newborn, newly adopted or placed child, or to care for a son or daughter with a serious health condition. However, the FMLA does not indicate whether someone who provides care for a child, but is not the child’s biological or legal parent. Among other situations, this arises in same sex marriage and civil union in which only one person is the child’s legal parent or guardian.

To answer this question, on June 22, 2010 the United States Department of Labor (DOL)’s Deputy Administrator issued a formal interpretation of the term “son or daughter” under the FMLA. The DOL indicated that someone is an employee’s son or daughter if they provide either financial support or day-to-day care for the child.

The DOL reached this conclusion because the FMLA defines “parent” to include someone who acts “in Loco parentis.” Someone acts in Loco parentis if they fill the normal obligations of a parent, but are not the child’s biological or adoptive parent. Someone who acts in Loco parentis is entitled to take an FMLA to take care of the child.

The DOL provided an example that an individual who provides day-to-day care for his or her partner’s child could be considered the child’s parent under the FMLA, even if he or she has no legal or biological relationship to the child. It also indicates that this can be true irrespective of whether the child has a biological parent in their home, or already has both a mother and a father.

Even More Ways to Prove Workplace Discrimination

July 26, 2010 | by Jonathan I. Nirenberg

The Timing of the Employer’s Decision

In some instances, the timing of an employment decision can help prove it was discriminatory. While this most frequently comes up in retaliation cases, it also arises in some types of employment discrimination cases. For example, if your boss starts treating you worse soon after you announce you are pregnant, or fires you when you try to return from a maternity leave, that might help prove gender and pregnancy discrimination. Similarly, if your employer demotes or fires you for no good reason after you request time off because of a medical condition, that could help support a disability discrimination claim.

Documents and Witnesses

Additional Ways to Prove Employment Discrimination

July 19, 2010 | by Jonathan I. Nirenberg

The Employer’s Pattern of Discrimination

In addition to the topics discussed in my previous article, How Do I Prove Employment Discrimination? (discriminatory statements of the employer and evidence the employer’s explanation is false), you also might be able to help prove discrimination by a pattern of discrimination. In other words, you can support your discrimination claim if you can show that your company tends to treat people of your race, gender, age, or other legally protected category worse than other employees.

For example, if the last three employees the company fired were in their 60’s, that could support your age discrimination claim. Or, if the company you worked for had a mass layoff or reduction in force, and a significantly greater percentage of African American or Hispanic employees were laid off than the percentage of African American or Hispanic employees at the company, then that could help prove you were the victim of race discrimination.

How Do I Prove Employment Discrimination?

July 10, 2010 | by Jonathan I. Nirenberg

State and federal employment laws in both New York and New Jersey make it illegal for employers to discriminate against employees because of their age, race, gender, pregnancy, disability, color, national origin, sexual orientation, or veteran/military status. But how do you prove your employer’s actions were discriminatory?

The Employer’s Discriminatory Statements

If the employee who took a discriminatory action toward you made discriminatory comments or jokes, then that can help show the decision to fire, demote, or take another adverse employment action against you was discriminatory. Similarly, if your boss called you or other employees in your protected group discriminatory names, that could help support a claim of discrimination. The closer in time the discriminatory comments were to the adverse employment decision, and the more related they were to the adverse decision, the better.

Nursing Mothers Finally Get a Break

June 28, 2010 | by Jonathan I. Nirenberg

Earlier this year, President Obama signed a law which requires employers to provide reasonable break time for nursing mothers. This new employment law right is part of the Patient Protection and Affordable Care Act. It amends the Fair Labor Standards Act of 1938 (FLSA), a federal law which requires employers to pay minimum wage to most employees, and overtime pay to most employees who work more than 40 hours per week.

The new law requires companies to give nursing mothers breaks each time the employee needs to express milk. It applies for up to one year after the birth of a child. However, employers are not required to pay employees during these breaks.

Employers also must give nursing mothers a place that is hidden from view and free from intrusion from other employees or the public. The law specifically says that the place cannot be a bathroom.