New Jersey Employment Lawyer Blog

Non-Disparagement Clauses Do Not Violate New Jersey Law Against Discrimination

June 6, 2022 | by Jonathan I. Nirenberg

Last week, in Savage v. Township of Neptune, the Appellate Division ruled that a 2019 amendment to the New Jersey Law Against Discrimination (“LAD”) does not prohibit parties from entering into non-disparagement clauses.

The Appellate Division’s opinion involved Christine Savage, a Sergeant for the Township of Neptune Police Department. Sgt. Savage brought an employment discrimination case against Neptune, Police Director Michael J. Bascom, Police Chief James M. Hunt, in which she alleged they engaged in sexual discrimination, harassment, and retaliation in violation of the LAD, the New Jersey Civil Rights Act (“NJCRA”), and the free speech provision of the New Jersey Constitution.

Sgt. Savage eventually settled her case. The settlement agreement included a mutual non-disparagement provision which prevented the parties from making any statements “regarding the past behavior of the parties, which statements would tend to disparage or impugn the reputation of any party.”

No Protection to Employee Fired for Racist Remarks on Facebook

May 24, 2022 | by Jonathan I. Nirenberg

A recent opinion by New Jersey’s Appellate Division finds that an employee cannot bring a retaliation claim against a private employer for firing her for posting racially insensitive statements on Facebook.

Heather J. McVey was a Corporate Director of Customer Service for AtlantiCare Medical System Incorporated and Geisinger Health System Incorporated. Ms. McVey was an employee at-will, meaning AtlantiCare had the right to fire her for any reason, or for no reason at all, as long as it did not violate the law.

During the protests following the murder of George Floyd, Ms. McVey engaged in a discussion on Facebook about the Black Lives Matter movement. She expressed her opinion that Black Lives Matter is “racist” and “causes segregation,” and that Black citizens were “not dying” but rather “killing themselves.” Ms. McVey identified herself on her Facebook profile as a Corporate Director at AtlantiCare.

When Can an Employer Require a Fitness for Duty Exam?

May 16, 2022 | by Jonathan I. Nirenberg

As a New Jersey employment lawyer, I have had numerous clients tell me their employer has asked or required them to undergo a fitness-for-duty examination. However, anti-discrimination laws limit when an employer has the right to send an employee to a medical exam.

Protection Under Anti-Discrimination Laws

The Americans with Disabilities Act (“ADA”) and the New Jersey Law Against Discrimination (“LAD”) both prohibit employers from sending employees for a fitness-for-duty exam unless the exam is “job-related” and “consistent with business necessity.”

Employer Can Fire Employee it Honestly Believes Abused FMLA Leave

May 4, 2022 | by Jonathan I. Nirenberg

A recent unpublished decision from the Third Circuit concludes that an employer can fire an employee because it honestly believes she abused her Family & Medical Leave Act (“FMLA”) leave.

Marsha VanHook worked as a patient representative for Cooper Health System for approximately nine years. One of her sons has attention deficit hyperactivity disorder (“ADHD”), severe oppositional defiance disorder, chronic depression, and anxiety.

For many years, Cooper allowed Ms. VanHook to take an intermittent FMLA leave to care for her son when he was not in school or supervised by someone else. However, Ms. VanHook’s supervisor eventually heard from another employee that Ms. VanHook might be using her FMLA leave inappropriately. In addition, Cooper’s Human Resources Department heard that Ms. VanHook was often using her FMLA Leave immediately before a weekend or another day off, which raised suspicion.

Police Captain Can Pursue Harassment in Retaliation for Objection to Illegal Arrest Quota System

April 14, 2022 | by Jonathan I. Nirenberg

A recent decision from New Jersey’s Appellate Division recognizes it can be retaliation in violation of the Conscientious Employee Protection Act (“CEPA”) for a police department to harass one of its members because he objected to a new policy he reasonably believed is an illegal arrest quota system.

Calvin Anderson has been a member of the East Orange Police Department for over 20 years. His supervisor, Anthony Cook, instituted a “productivity improvement system” that Anderson believed violated a New Jersey law that prohibits police departments from instituting arrest quota systems. Anderson, who was a lieutenant at the time, complained about the productivity improvement system and refused to implement it.

Anderson filed a lawsuit against the Department and Cook, alleging they retaliated against him in violation of CEPA. He claims Cook retaliated against him by investigating him for neglect-of-duty regarding his supposed failure to complete an accident-reconstruction report. Even though the investigating officer concluded Anderson did nothing wrong, Cook then filed a complaint to the Internal Affairs Department about the same incident. In addition, Cook required Anderson to increase his productivity in terms of stops and arrests in a crime zone, and issued him a written warning notice for failing to do so. Cook also threatened to bring neglect-of-duty charges against Anderson for failing to file an incident report about another officer, even though doing so was the responsibility of a sergeant. In addition, Cook ordered another captain to investigate Anderson, and threatened to issue a written warning to Anderson, for failing to report to a lineup for a July Fourth celebration. Likewise, Cook berated Anderson in front of the mayor for supposedly neglecting his duty and wasting taxpayer dollars, and frequently assigned him to the midnight shift, which prevented him from working traffic details, which Anderson claims caused him to lose $10,000 to $12,000 in compensation.

Appellate Division Reinstates Employee’s Whistleblower Claim

April 4, 2022 | by Jonathan I. Nirenberg

In a recent opinion, New Jersey’s Appellate Division reinstated Margaret Gatham’s whistleblower claim against Care One Management, LLC, its Executive Vice President, Elizabeth Straus, and its Deputy General Counsel, Thomas A. McKinney.

Ms. Gatham worked for Care One from 2005 until she resigned in July 2012. In 2015, Care One’s Chief Strategy Officer, Timothy Hodges, contacted her to discuss her potentially returning to Care One based on her past success turning the facility around, including her success collecting money. In August 2015, Ms. Gatham returned to Care One as its Director of the Shared Business Office.

In approximately September 2015, Ms. Gathman discovered that Care One had failed to return to Medicare, Medicaid and other entities and individuals, overpayments and security deposits for residents who had died, in violation of the Affordable Care Act. In early 2016, Ms. Gatham reported this issue to her immediate supervisor. Ms. Gatham came up with a plan for Care One to return the money. Ms. Gatham indicated she was concerned about the company’s failure to return those funds, which she estimated could have been $13 million. She also periodically updated members of the company’s senior management, including Ms. Strauss, about those plans.

Requiring Employee to Seek Another Job is an Adverse Employment Action

March 13, 2022 | by Jonathan I. Nirenberg

A recent case recognizes that an employer’s decision to remove an employee from her job and give her an opportunity to search for another position within the company is an adverse employment action. In other words, if it is done for a discriminatory reason, doing so can violate the New Jersey Law Against Discrimination (“LAD”).

Kathleen Fowler, who has epilepsy and is a cancer survivor, worked for AT&T for 30 years and is over 60 years old. In December 2015, AT&T announced a plan to reduce the Technology Planning and Engineering business unit for which Ms. Fowler worked by eliminating numerous positions. AT&T placed the employees impacted by this reduction in force on “surplus status,” meaning they were given the choice to accept a severance package and leave the company, or remain employed for 60 days to search for another job within AT&T. If an employee on surplus status was not offered another position within those 60 days, then she would receive the severance benefits.

Ms. Fowler elected to go onto surplus status. During that period, she was offered two positions, one in New Jersey and the other in Texas. Even though she was better qualified for the position in Texas, Ms. Fowler accepted the job as a senior system engineer because it was in New Jersey and she did not want to interrupt her cancer treatment.

New Law Bans Forced Arbitration of Sexual Harassment and Assault Claims

March 4, 2022 | by Jonathan I. Nirenberg

Arbitration is widely believed to favor big business over individuals. I have written numerous articles about forced arbitration, including cases that enforced arbitration of employment law claims, and ones that overturned such provisions. In my law practice, I have fought against forced arbitration on many occasions.

Yesterday, President Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 into law. As its name suggest, this law now prohibits forced arbitration of sexual harassment and sexual assault claims. The law received bipartisan support in Congress, a rare feat in the current political climate.

The new statute deems that a person who files a case in which he or she alleges sexual harassment or sexual assault cannot be forced to be bound by an arbitration agreement or class or collective action waiver that he or she entered into before the dispute arose. However, the person asserting the sexual harassment or assault still can chose to enforce an arbitration agreement. Likewise, parties still can agree to enter into arbitration agreements after a dispute involving sexual harassment or sexual assault if that is their preference, and either party can enforce such an agreement.

Employer Too Late to Compel Arbitration in Whistleblower Lawsuit

February 9, 2022 | by Jonathan I. Nirenberg

In a recent employment law case, New Jersey’s Appellate Division ruled that an employer had waived its right to compel arbitration by waiting 10 months before it sought to do so.

Tevin Welcome worked as a van driver for Huffmaster, Inc. Before Huffmaster hired him, Mr. Welcome completed an online application. The application included an arbitration provision, which indicated that if he accepted a job with the company, then he would have to resolve any dispute with the company, including claims of discrimination or retaliation, through arbitration instead of in court.

When Huffmaster hired Mr. Welcome, he moved from Texas to New Jersey for the job. However, he quickly discovered that few of his coworkers and the clients who rode in the van he drove complied with New Jersey’s COVID-19 mask mandate. Mr. Welcome was particularly concerned that he could get COVID and give it to his six-year-old son who has health problems.

NYC Job Ads Soon Must Specify Salary Ranges

February 1, 2022 | by Jonathan I. Nirenberg

Starting soon, most job advertisements in New York City will be required to list the salary range for the job.

More specifically, the failure to include salary range information in a job posting will be unlawful discrimination in violation of the New York City Human Rights Law (“NYCHRL”). To comply with the law, the salary range must not go beyond what the employer believes, in good faith, is the range it would pay someone for the job at the time of the job posting.

In most respects, the law will apply only to employers of at least four employees during the prior year, including independent contractors who are working “in furtherance of an employer’s business enterprise.” However, when there is a claim of gender harassment, then the requirement will apply to employers of all sizes.