New Jersey Employment Lawyer Blog

Employees’ Private Communications With Lawyers on Company Computers Protected By Attorney-Client Privilege

July 15, 2009 | by Jonathan I. Nirenberg

On June 26, 2009, in Stengart v. Loving Care Agency, Inc., New Jersey’s Appellate Division ruled that confidential emails employees send to their lawyers using company computers are protected by the attorney-client privilege.

Under the attorney-client privilege, communications made in confidence between lawyers and their clients in the course of their professional relationship are privileged. The primary reason for the attorney-client privilege is to encourage clients to engage in a full and free disclosure of information with their lawyers.

In Stengart, employee Marina Stengart was still working for Loving Care Agency, Inc., when she emailed an employment lawyer about her potential discrimination case. She sent emails to her attorney, using her private Yahoo email address, from her company-issued laptop.

New Jersey Law Prohibits Refusal to Renew Contract Because Employee is Over 70 Years Old

June 25, 2009 | by Jonathan I. Nirenberg

The New Jersey Law Against Discrimination (LAD) prohibits employers from discriminating against employees on the basis of age. Among other things, it prohibits employers from firing, refusing to hire or requiring an employee to retire because of their age.

However, the LAD expressly does not prohibit employers from refusing to hire or promote a person over 70 years old. As a result, someone who is not hired or promoted because they are over seventy years old does not have an age discrimination claim under the LAD.

On April 23, 2009, in Nini v. Mercer County Community College, the New Jersey Appellate Division ruled that this over-seventy exception does not apply to a company’s failure to renew an employment contract. In other words, a company violates the LAD if it decides not to renew an employment contract of an individual who is over 70 years old based on the employee’s age.

After-Acquired Evidence Inadmissible Until After Jury Finds Wrongful Termination

June 18, 2009 | by Jonathan I. Nirenberg

Earlier this month, New Jersey’s Appellate Division ruled that it is improper to present a jury with evidence regarding “after-acquired evidence” until after it has determined that an employer violated New Jersey’s Conscientious Employee Protection Act (CEPA). CEPA is New Jersey’s whistleblower law.

After-acquired evidence is when a company learns during a discrimination or retaliation lawsuit that the employee did something while he worked for the company that would have been grounds for firing him. If the employer can prove it would have fired the employee based on the new evidence, the employee’s damages for lost salary and benefits are cut off from the date on which the employer learned the new information.

Even when it applies, the after-acquired evidence defense does not prevent an employee from proving a wrongful termination claim, does not impact damages for salary and benefits the employee lost before the employer discovered the wrongdoing, and does not limit damages for emotional distress damages in any way. It only cuts off damages for lost salary and benefits starting from the date on which the employer discovered the new information.

Employees Working in Other States Can Sue Under New York’s Anti-Discrimination Laws

May 29, 2009 | by Jonathan I. Nirenberg

If you have been the victim of unlawful discrimination or harassment, you might be able to sue your employer for under New York law even if you never worked in New York. At least according to one New York appellate court, employees can bring discrimination claims under New York’s anti-discrimination law if they are residents of New York or if the company made its discriminatory decision in New York, even if their jobs were out of state. For example, a New York State resident who works in New Jersey or Connecticut can sue his or her employer for discrimination under New York law.

Among other things, the New York Human Rights Law (NYHRL) prohibits employment discrimination and harassment based on an individual’s age, race, creed, color, national origin, sexual orientation, military status, gender, genetic characteristics, or marital status. The New York City Human Rights Law (NYCHRL) prohibits discrimination and harassment based on virtually all of those categories, as well as discrimination based on gender identity, partnership status, alienage/citizenship status, and status as a victim of domestic violence, stalking or sex offense. Both laws prohibit companies from retaliating against employees who complain about legally prohibited discrimination or harassment.

The NYHRL specifically states that it applies to acts committed outside of New York State if the employee is a resident of New York. Thus, New York residents can sue companies for violating the NYHRL even if they worked in another state.

Discrimination Against Caregivers

May 22, 2009 | by Jonathan I. Nirenberg

Earlier this month, the United States Equal Employment Opportunity Commission (EEOC) published suggested best practices for companies to minimize the chance of violating the rights of employees who are also caregivers. Those suggested practices supplement the guidelines the EEOC issued in 2007 regarding when it is unlawful for an employer to discriminate against an employee who is a caregiver.

Although there is no law in New York or New Jersey which expressly prohibits discrimination against employees because they are caregivers, many state and federal laws provide protection to caregivers under certain circumstances. For example, the New Jersey Law Against Discrimination, the New York Human Right Law, the Family & Medical Leave Act (FMLA), the New Jersey Family Leave Act, Title VII of the Civil Rights Act of 1964, and the Americans with Disabilities Act (ADA) all provide some protection to caregivers.

The EEOC’s 2007 guidelines regarding employees with caregiving responsibilities recognize that, in part due to anti-discrimination laws, women now make up nearly half of the workforce in the United States. In addition, while the role of men as caregivers has substantially increased over the past 50 years, women still disproportionately have the primarily responsibility for caring for children and elderly parents, in-laws, and spouses. As a result, employment practices that disfavor caregivers disproportionately harm women.

Frequently Asked Questions About New Jersey’s Conscientious Employee Protection Act

April 28, 2009 | by Jonathan I. Nirenberg

Q. What is the Conscientious Employee Protection Act?

A. The Conscientious Employee Protection Act (CEPA) is New Jersey’s whistleblower law. It is one of the broadest anti-retaliation laws in the country. It provides broad protection to employees who report illegal and unethical workplace activities. Its primary purposes are to encourage employees to report illegal and unethical workplace activities, and to discourage employers from engaging in illegal and unethical conduct.

Q. Who is protected by CEPA?

Tenure Protection for Clerical Employees in New Jersey Public Schools

March 31, 2009 | by Jonathan I. Nirenberg

In the United States, the vast majority of employees are employees at-will, meaning they can be fired for almost any reason, as long as the decision is not the result of unlawful discrimination, retaliation, a breach of an employment contract, or some other form of wrongful discharge. However, certain employees of public schools eventually gain much greater protection — the protection of tenure laws.

When most people think about tenure laws, they think of school teachers. In many states, including both New York and New Jersey, teachers attain tenure after they teach in the public school system for more than three years.

But at least under New Jersey law, in addition to teachers, secretarial and clerical employees working for public schools are eligible to attain tenure. The applicable tenure statute states that “[a]ny person holding any secretarial or clerical position or employment under a board of education of any school district” shall attain tenure after “a period of employment of three consecutive calendar years.”

Courts Can Increase Employment Law Jury Awards to Offset Adverse Tax Consequences of Lump Sum Payment

March 28, 2009 | by Jonathan I. Nirenberg

When an employee wins a wrongful termination lawsuit, the judge or jury is supposed to award economic and emotional distress damages that compensate the employee for his or her losses. In particular, damages for past and future lost wages and benefits are supposed to compensate the employee for the economic losses caused by the illegal discrimination or retaliation. Courts often refer to this as making the employee whole.

However, because higher incomes are taxed at higher rates, an employee who receives an award for lost wages can end up paying much more in taxes than she would have paid if she had not experienced the discrimination or retaliation. In those cases, employees are not made whole for their economic losses. Rather, they end up with less money in their pockets after taxes than if the unlawful employment practice had not occurred.

For example, if an employee making $100,000 per year is illegally fired, a jury might award her $400,000 for past and future lost income. That individual would receive the $400,000 in one lump sum, rather than the $100,000 per year she would have received if she had remained employed. But because the income tax rate increases as your total annual income increases, that individual would pay significantly more in taxes than if she had remained employed and received $100,000 each year. The higher the total lost wages award, the greater the impact of this problem.

Federal Government Subsidizing Health Care Benefits For Laid Off Employees

February 28, 2009 | by Jonathan I. Nirenberg

A new amendment to an important employment law was included in the American Recovery and Reinvestment Act, a law which you might know better as President Obama’s most recent Economic Stimulus package. Under that law, the United States government will pay 65% of an employee’s health insurance premiums for up to nine months after an employee is involuntarily fired or laid off. This new provision is part of the Consolidated Omnibus Budget Reconciliation Act (COBRA). It applies to individuals who are covered by COBRA who involuntarily lose (or lost) their jobs between September 1, 2008 and December 31, 2009. It even covers individuals who have already turned down COBRA benefits since September 1, 2008.

The government stipend toward COBRA benefits is reduced for individuals who make more than $125,000 per year and married couples who file joint tax returns and earn more than $250,000 combined. The benefits phase out completely for individuals who make more than $145,000 and for couples filing joint tax returns who earn more than $290,000 combined.

COBRA is a law that allows many employees, as well as their spouses and dependent children, to continue to receive health insurance benefits for at least 18 months (and under certain circumstances, for as long as 36 months) after they lose their health insurance coverage from an employer. COBRA allows those individuals to pay for their health insurance based on the employer’s group rates, plus a 2% administrative cost. Prior to the stimulus package, employees who elected to continue their health insurance benefits under COBRA had to pay the entire cost of keeping their medical benefits out of their own pockets. Employees who are eligible for the new government subsidy only have to pay 35% of that cost.

The Doctrine of Apparent Authority

February 18, 2009 | by Jonathan I. Nirenberg

Imagine a company’s Vice President offered you a great new job. Better yet, he or she offered you a guaranteed written one year employment contract that provides a generous salary and benefits. You signed the contract and started the job, only to be told by someone in the human resources department that the Vice President who hired you did not have the authority to offer you an employment contract, the company has hired someone else for your job, and you are fired. Do you have a legal claim for the company breaching your employment contract?

The answer is not so simple. Generally, the law only holds a company responsible for contracts which are made by someone who actually has the authority to enter into that type of contract on the company’s behalf. For example, if an employee has the authority to hire employees, then the company ordinarily must honor the employment contacts he or she enters into on the company’s behalf. However, if an employee tries to enter into an agreement on behalf of the company without having the authority to do, then the company is generally not bound by that agreement.

But what about when an employee who does not actually have the authority to hire, but reasonably appears to have that authority? The law in many states, including New York and New Jersey, recognizes that companies sometimes should be bound when they allow people to reasonably believe that a corporation’s employee has more authority than he or she actually has. Under the doctrine of “apparent authority,” a company potentially can be held legally responsible when it allows others to reasonably believe that someone else had the authority to act on the company’s behalf. The law recognizes that often when a company’s representative has the apparent authority to act on the company’s behalf, the company should be legally bound by the representative’s actions. Accordingly, since you reasonably believed the Vice President had the authority to hire you, at least in some states you would at least have a good argument to enforce your employment contract based on the Vice President’s apparent authority to hire you.