New Jersey Employment Lawyer Blog

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.

Supreme Court Rules it is Unlawful to Retaliate Against Employee For Harassment Complaint During Investigation

February 2, 2009 | by Jonathan I. Nirenberg

On January 26, 2009, the United States Supreme Court ruled that Title VII of the Civil Rights Act of 1964 (Title VII) prohibits retaliation against employees who speak out about harassment while answering questions as part of a company’s internal harassment investigation.

The case, Crawford v. Metropolitan Government of Nashville and Davidson County, involved a sexual harassment investigation by the Metropolitan Government of Nashville and Davidson County, Tennessee (Metro). Metro began investigating rumors of sexual harassment by one of its employee, Gene Hughes. During the investigation, a human resources representative asked an employee, Vicky Crawford, if she had witnessed any inappropriate behavior by Mr. Hughes. In response, Ms. Crawford described several examples of Mr. Hughes sexually harassing conduct toward her. During the investigation, two other Metro employees also indicated that Mr. Hughes had sexually harassed them.

Metro took no disciplinary action against Hughes. However, shortly after it completed the investigation, it fired Ms. Crawford and the two other women who accused Mr. Hughes of sexual harassment. Metro claims it fired Ms. Crawford for embezzlement.

President Obama Signs Lilly Ledbetter Fair Pay Act

January 29, 2009 | by Jonathan I. Nirenberg

Earlier today, President Obama signed the Lilly Ledbetter Fair Pay Act of 2009. The Act reverses the United States Supreme Court’s 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007) which requires an employee to bring a federal claim of pay discrimination in violation of the Title VII of the Civil Rights Act of 1964 (Title VII) within 180 days (or in some states, including New York and New Jersey, within 300 days) of the decision that caused the pay disparity.

In the Ledbetter case, the Supreme Court ruled that Lilly Ledbetter was outside of Title VII’s filing deadline when she initiated her gender discrimination claim against Goodyear. Ms. Ledbetter was seeking damages because she was paid less than men in comparable positions at the company. The Supreme Court found that her claim was untimely because she did not file a charge of discrimination with the United States Equal Employment Opportunity Commission (EEOC) within 180 days after the company’s initial discriminatory decision, even though she was still underpaid due to the past discrimination in that her salary remained lower than her male coworkers.

The Ledbetter decision was highly criticized on the basis that employees usually do not know how much their coworkers are paid, making it difficult or impossible for them to determine that they are experiencing discriminating against with respect to their compensation. As a result, employees who have been underpaid because of their race, color, sex (gender), religion, national origin, or disability are unlikely to know about it until long after the 180 (or 300) day EEOC filing deadline.

Senate Votes in Support of Fair Pay Act

January 25, 2009 | by Jonathan I. Nirenberg

On January 22, 2009, the United States Senate voted to pass the Lilly Ledbetter Fair Pay Act of 2009. If into becomes law, the Act would reverse the United States Supreme Court’s 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), which requires an employee to bring a federal claim of pay discrimination in violation of the Title VII of the Civil Rights Act of 1964 (Title VII) within 180 days (or in some states, including New York and New Jersey, within 300 days) of the decision that caused the pay disparity.

In the Ledbetter case the Supreme Court ruled that Lilly Ledbetter was too late when she filed her gender discrimination lawsuit against Goodyear. In her case, Ms. Ledbetter as seeking damages because she was paid a lower salary than men in comparable positions at the company. The Supreme Court ruled that her claim was untimely because she did not file a charge of discrimination with the United States Equal Employment Opportunity Commission (EEOC) within 180 days after the company’s initial discriminatory decision, even though she was still underpaid due to the past discrimination, since her salary remained lower than her male coworkers throughout her career.

The Ledbetter decision has been highly criticized ever since it was decided. One problem with it is that employees generally do not know how much their coworkers are paid, often making it difficult or impossible for them to determine that their employers are discriminating against them with respect to their compensation, As a result, employees who have been underpaid because of their race, color, sex (gender), religion, national origin, or disability are unlikely to know about it until long after the 180 (or 300) day EEOC filing deadline.

Damages in Employment Law Cases

January 17, 2009 | by Jonathan I. Nirenberg

Many people who have been fired, demoted, harassed, or experienced some other violation of their employment law rights wonder what kind of damages they can recover if they win their case. Damages in employment law case can vary greatly in different states and under different laws, so it is recommended that you contact an employment lawyer in your area to discuss your specific claims. However, the most common type of damages available in employment law cases in New York and New Jersey include economic damages, emotional distress damages, attorneys fees and costs, punitive damages, and liquidated damages.

Economic Damages

Most employment laws allow for the recovery of economic damages. Economic damages are intended to compensate you for the salary and benefits you lost. They can include your lost salary and the value of your lost benefits like health insurance, a pension, or a 401(k) plan. Economic damages include past losses (called back pay) and future losses (called front pay).

New Jersey Supreme Court Expands Claim of Wrongful Discharge in Violation of Public Policy

December 31, 2008 | by Jonathan I. Nirenberg

On December 16, 2008, in the case of Tartaglia v. UBS PaineWebber, the New Jersey Supreme Court expanded the scope of the claim of wrongful discharge in violation of public policy.

Before explaining the significance of the Tartaglia decision, it is important to understand the claim of wrongful discharge in violation of public policy. The New Jersey Supreme Court first recognized that claim in 1980, when it ruled that it is unlawful to fire a New Jersey employee in if the termination violates a clear mandate of public policy. Specifically, that prohibits a company from firing an employee for objecting to an illegal corporate policy or practice, or for refusing to engage in an illegal activity. It also prohibits companies from firing an employee for blowing the whistle on, or refusing to engage in, acts that are not illegal but violate a clear mandate of public.

A few years later, in 1986, the New Jersey legislature passed the Conscientious Employee Protection Act (CEPA). CEPA prohibits a broad range of retaliatory employment actions, such as making it unlawful to fire an employee for objecting to or refusing to participate in an activity he or she reasonably believed was fraudulent, criminal, violated the law, or was incompatible with a clear mandate of public policy concerning public health, safety or welfare, or the protection of the environment.

Frequently Asked Questions Regarding the New Jersey Family Leave Insurance Law

December 16, 2008 | by Jonathan I. Nirenberg

Earlier this year, New Jersey became the third state in the country to pass a law entitling employees to be paid during family leaves. New Jersey’s Family Leave Insurance law is set to go into effect in just a few weeks. Since the law is brand new, many employees and employers do not fully understand what the law means or what it requires. This article will answer many of the most frequently asked questions about the New Jersey Family Leave Insurance law.

Q. When Does the Family Leave Insurance Law Go Into Effect?

A. On January 1, 2009, New Jersey companies will begin withholding taxes from employee salaries to fund family leave insurance benefits. Starting on July 1, 2009, qualified employees will be entitled to receive state insurance benefits during covered family leaves.

New Guidelines Under New York’s Employee Blood Donation Leave Law

December 8, 2008 | by Jonathan I. Nirenberg

The New York Department of Labor recently issued guidelines for employee blood donation leave under New York State Labor Law Section 202-j. That law, which went to effect late last year, requires companies with twenty or more employees to allow employees to take time off to donate blood. Those companies must choose either to allow employees at least one leave of absence of up to 3 hours each year to donate blood (off-premises blood donation leave), or allow employees to donate blood during work hours at least twice a year at a “convenient time and place set by the employer,” such as allowing employees to participate in a blood drive at their place of employment, without having to use accumulated leave time (on-premises blood donation leave).

The New York Department of Labor’s new guidelines provide additional detail regarding the rights and requirements of New York’s blood donation leave law. For example, they indicate that:

Off-Premises Blood Donation Leave:

Employers are not required to pay employees during off-premises blood donation leaves.
The right to take off-premises blood donation leave is based on a calendar year, meaning that covered employers that elect off-premises blood donation leave must permit employees to take at least one such leave during each calendar.

On-Premises Blood Donation Leave:

Employers cannot require employees to use accumulated vacation, personal, sick, or other leave time for on-premises blood donation leave.
The right to take leave is based on a calendar year, meaning that covered employers that elect on-premises blood donation leave must offer employees two on-premises blood donation leaves during each calendar year.
The requirement that on-premises blood donation leave must be at a “convenient time” means during an employees’ normal scheduled work hours.
The requirement that on-premises blood donation leave must be at a “convenient place” means employers cannot require employees to travel an unreasonable distance.
Covered employers must offer an alternative option for employees who are unable to participate in an on-premises blood donation leave, such as when an employee is sick or on vacation during a scheduled company blood drive.
Covered companies must give employees who donate blood at an on-premises blood donation leave enough time off to donate blood, recover (including eating something after donating blood), and return to work.
Covered employers must prominently post notice of any on-premises blood donation leave at least two weeks in advance.
Companies cannot schedule an on-premises blood donation leave when a significant number of employees are out of the office, such as during the last week of December or around other major holidays.

Required Notice of Employees’ Rights:

Employers must notify employees in writing of their right to take blood donation leave in a place that ensures employees will see it, such as by posting the information prominently in a place where employees gather, or including the information with employees’ paychecks or in the employee handbook.
Employers can require employees to give advance notice of when they plan to take a blood donation leave. Ordinarily, employers can require employees to give up to 3 workdays’ notice before taking an off-premises blood donation leave, or 2 days notice before an employee participates in an on-premises blood donation leave. However, employers can require up to 10 working days advance notice if necessary because the employee’s position is essential to the company’s operation, and employees can give less than 3 days’ notice if they are donating blood because of an emergency surgery of the employee him or his or her family member.

The employment lawyers at Rabner Baumgart Ben-Asher & Nirenberg are dedicated to enforcing the employment law and civil rights of employees in New York and New Jersey.

New Jersey Employees Can Prove Discrimination Even If Decisionmaker Had No Discriminatory Animus

November 24, 2008 | by Jonathan I. Nirenberg

The New Jersey Appellate Division recently ruled that it is possible for an employee to prove he was fired for a discriminatory reason even if the person who made the ultimate decision to fire him did not have any discriminatory animus. Specifically, that can happen if the employee’s supervisor did something to bias the decisionmaker, or if the decisionmaker’s involvement in the process was a mere formality.

The case, Kwiatkowski v. Merrill Lynch, involved Merrill Lynch’s decision to fire one of its employees, Darren Kwiatkowski. Mr. Kwiatkowski is gay. Merrill lynch fired him after he deliberately disobeyed an instruction from his supervisor, Theresa Wonder.

Immediately after Mr. Kwiatkowski’s insubordination, Ms. Wonder reported him to her supervisor, Sandra Givas, and recommended that the company should fire him. There was evidence that Ms. Wonder knew Mr. Kwiatkowski was gay and was biased against him on that basis. However, there was no evidence that Ms. Givas even knew that he was gay.

Single Anti-Gay Comment Can Create a Hostile Work Environment

November 11, 2008 | by Jonathan I. Nirenberg

On August 13, 2008, in Kwiatkowski v. Merrill Lynch, New Jersey’s Appellate Division ruled that a single anti-gay comment can create a hostile work environment in violation of the New Jersey Law Against Discrimination (“LAD”). In particular, the court ruled that a jury could find that an employee had been unlawfully harassed based solely on his supervisor calling him a “stupid fag” once, under her breath. That is important because the law requires harassment to be either sufficiently severe (bad enough) or pervasive (frequent enough) that the terms and conditions of employment have been materially changed and the employee’s work environment is hostile.

The decision in that case is unpublished. That means it is not binding on other New Jersey courts. However, it is still a significant decision for its reasoning and analysis, which other courts are likely to consider, if not follow.

The plaintiff in that case, Mr. Kwiatkowski, is gay. Although he told only a few of his coworkers, he assumed it was common knowledge that he was gay.